Li v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1206

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Li v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1206   

File number(s):

BRG 638 of 2023

Judgment of:

JUDGE EGAN

Date of judgment:

14 November 2024

Catchwords:

MIGRATION LAW – Where the first applicant was required to satisfy criteria for the grant to him of a Business Innovation and Investment (Provisional) (Subclass 188) Visa – where the evidence before the delegate failed to satisfy the delegate that the first applicant made decisions affecting the overall direction and performance of the business – criteria not satisfied – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 54 and 55

Migration Regulations 1994, Reg 1.11, Reg 1.11(1)(b)

Migration Regulations 1994 – Schedule 2, Clause 188.225

Cases cited:

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

Hunter Valley Developments Pty Ltd v Cohen (1984) 3FCR 344

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA28

Division:

Division 2 General Federal Law

Number of paragraphs:

26

Date of last submission/s:

12 November 2024

Date of hearing:

12 November 2024

Place:

Brisbane

Counsel for the Applicants:

Mr L. Boccabella

Solicitor for the Applicants:

Hartnett Lawyers

Counsel for the Respondent:

Mr D. Freeburn

Solicitor for the Respondent:

Clayton Utz

ORDERS

BRG 638 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ZHEN LI

First Applicant

ZHONGGUI WANG
Second Applicant

YUNZHU LI
Third Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent  

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	14 NOVEMBER 2024

IT IS ORDERED THAT:

1.The name of the respondent be changed to “Minister for Immigration and Multicultural Affairs”.

2.The application for extension of time for the filing of the Originating Application for Review filed on 12 December 2023 be dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE EGAN

INTRODUCTION

1. The first applicant is a citizen of the People’s Republic of China who applied for a Business Innovation and Investment (Provisional) (Subclass 188) Visa on or about 24 November 2020. The second and third applicants were members of the first applicant’s family unit. The success of their visa applications depended upon the success of the first applicant’s visa application.

2. Clause 188 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) set out the criteria for the grant of a Subclass 188 visa. Clause 188.225 relevantly provided as follows:

   MIGRATION REGULATIONS 1994 - SCHEDULE 2

   Provisions with respect to the grant of Subclasses of visas

   188.225  

   (1)  For at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant had an ownership interest in one or more established main businesses that had an annual turnover, in each of those years, of:

   (a)  if the time of invitation was before 1   July 2021--at least AUD500,000; or

   (b)  if the time of invitation was on or after 1   July 2021--at least AUD750,000.

   (2)  If the applicant was engaged in one or more businesses providing professional, technical or trade services for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant was directly engaged in the provision of the services, as distinct from the general direction of the operation of the business, for no more than half the time spent by the applicant from day to day in the conduct of the business.

3. That clause was to be considered in the context of r. 1.11 of the Regulations, which provided as follows:

   MIGRATION REGULATIONS 1994 - REG 1.11

   Main Business

   (1) For the purposes of these Regulations and subject to sub-regulation (2), a business is a main business in relation to an applicant for a visa if:

   (a)  the applicant has, or has had, an ownership interest in the business; and

   (b)  the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and

   (c)  the value of the applicant's ownership interest, or the total value of the ownership interests of the applicant and the applicant's spouse or   de   facto   partner, in the business is or was:

   (i)  if the business is operated by a publicly listed company--at least 10% of the total value of the business; or

   (ii)  if:

   (A)  the business is not operated by a publicly listed  company; and

   (B)  the annual turnover of the business is at least AUD400 000;

   at least 30% of the total value of the business; or

   (iii)  if:

   (A)  the business is not operated by a publicly listed company; and

   (B)  the annual turnover of the business is less than AUD400 000;

   at least 51% of the total value of the business; and

   (d)  the business is a qualifying business.

   (2)  If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this sub-regulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.

4. The first applicant nominated Shanghai Behrenhans Landscape & Engineering Co. Ltd as his main business, with 2018 and 2019 being the years nominated for assessment.

5. In a letter sent to the office of the Australian Department of Home Affairs in Hong Kong signed by the first applicant and dated 9 January 2023, the first applicant stated that he had worked at a high level in China as an architect, and that he had received a prestigious award called the “Zhan Tianyou Prize” in 2014. He also stated that he joined the company as “a Deputy General Manager” in late 2017 with a 30% shareholding. [1] Under the heading “Management”, the first applicant stated as follows: [2]

   [1]           Court Book (CB) p. 524.

   [2]           CB pp. 525 – 526.

   Question 3 – Management

   Although I only hold 30%, this was the agreed shareholding as I entered the business after it was already established for more than 15 years. For me to have held 51%would mean a buy out of the company which is celebrating its 20^th year this year, and complete change over the current remaining shareholder was not agreeable to.

   I applied for my visa at the end of 2020, after holding the business for 3 years.

   As COVID occurred and my wife and daughter have been in Australia on corresponding student and student guardian visas, I realised with all the scarcity in the world that I need to be with my family. My daughter has grown to be a mature young girl and accustomed to Australia. It is for this reason my wife and I decided it is best to stay in Australia. This is the purpose of applying for the visa, to grow our
   business in Australia, grow personally and contribute to the Australian economy.
   I have been listed as the Supervisor of the Company. We were advised by our accountant that article 51 of the PRC Company law states:

   
   
   

   "No director or senior manager may concurrently serve as a supervisor."

   So for compliance and when we realised this was the case, I removed my supervisor title on the record; however, this did not change my day to day duties. I continue to be a shareholder and Deputy General Manager to this day.

   The shareholding is

   •Li Zhen (Myself) 30%

   •Chen Zuowen (founder, 70% shareholder from 29 November 2017 until 22 October 2019 and now 0% shareholder. He was always a majority shareholder since 2002 until he gave his shares to his wife)

   •Xu Mei (the wife of Chen Zuowen) and now the holder of 70% shareholding.

   I am is the general deputy manager dealing with design management, marketing, personnel arrangements with 18 staff between 2018 - 2019, and recently in 2020 and 2021 with COVID slowdowns with projects staff decreased to 12. I have held 30% shareholding until this day.

   Chen Zuowen and Xu Mei are married. Xu Mei, is the major shareholder and is an electrical engineer. She deals with financial and administrative affairs. She is unable to handle the business by herself as she is not qualified.

   Chen Zuowen is the original founder of the business and holds the most shares (until he relinquished them to his wife). He is listed as the legal representative for this reason as he has the most longevity of the business and established the business. He has since been devoting his attention to his new venture and part of the reason I came into BHL to manage so that Chen Zuowen can step back.

   The structure of our business and role is on the company board which makes all long term decisions of the business. My role is at the crux of the business and includes:

   •Invoiced in establishing and executing the Company’s long term and short term planning and strategies

   •Attending yearly meetings with Shareholders;

   •Establishing and executing yearly marketing, sales strategy, sales target, performance monitoring and cost minimisation;

   •Managing the design department, reviewing the design and ensuring the quality the quality of design work before delivery;

   •Holding meetings with staff for regular review;

   •Establishing policies in staff employment and training;

   •Managing the employment of staff including the hiring, terminating and improvement of staff members.

   As additional proof of my day-to-day management both internally and externally of the business, I have included the following documents to assist your office:

   •Statement of Company on division of Chores

   •File of work with:

   •Wanning Shimei Peninsula including reference from the business which is a China State Owned Enterprise, 51% and China Resources Group, 49%

   •Haipo Group Inc including reference for the Shanghai Shangai Pharmateutical R&D Building Project

   •Reference from:

   •DoubleTree Resort by Hilton Hainan

   •Working wechat messages:

   •Mei Xu – Financial Controller of BHL

   •Liu Xiaopeng – Marketing Department of BHL

   •Zowen Chen – General Manager of BHL

   •Poul Chen – General Manager and partner of HPA

   I have provided evidence of minutes of meetings, business decisions, authority for costing, hiring and firing of staff, reference and work with various companies that have utilised our services.

   Conclusion

   I am available at any time for any further details or information require. I am happy for a site interview, telephone interview, staff and/or company interview if required to further assist, as well as provide any further information or documents as needed.

   Thank you for your consideration.

6. On 31 March 2023, the first applicant received notice of the delegate’s decision to refuse the visa application. The first applicant had until 5 May 2023 (35 days from the date of decision) to bring an application for judicial review. The application for review was filed more than 6 months out of time.

7. The visa application was made at a time when the first applicant was under fifty (50) years of age. The delegate’s decision was made after the first applicant had attained the age of fifty (50) years. Because there is a fifty (50) year age limit for the making of visa applications for residency in Australia, it was submitted on behalf of the first applicant that if the application for extension of time was not granted, and if a review of the decision of the delegate was unsuccessful, the first applicant and his family would be unable to reside in Australia in the future.

   GROUNDS OF REVIEW

8. On 12 December 2023, an application for an extension of time to file an application for judicial review of the decision of the delegate was filed. The grounds of review were as follows:

   Grounds of application

   [The delegate of the Minister is called “the delegate”]

   1. The delegate failed to properly apply and/or interpret Reg 1.11 of the Migration Regulations 1994 (Cth).

   2. The delegate did not properly apply and/or interpret ss54 and 55 of the Migration Act 1958 (Cth).

   3. The delegate failed to properly appreciate, understand and evaluate the first applicant’s claim that he “maintained or had maintained direct and continuous involvement in management of the applicant’s business from day to day and in making decisions affecting the overall direction and performance of the business”, and the delegate did not meet the terms of decision making set out in paragraph 38 of the reasons for judgment in Plaintiff M1/2021 v Minister for Home Affairs [2022]
   HCA 17 and as such failed to meet the requirements of ss54 and 55 of the Migration Act and further and/or in the alternative failed to properly carry out her functions in order to properly make a decision under s65 of the Migration Act.

   
   

   4. The decision of the delegate was unreasonable.

9. The applicant relied upon each of the grounds of review at the time of the hearing before the Court.

   RELEVANT CONSIDERATIONS

10. The principles governing applications for extension of time were considered by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3FCR 344 at [18] – [23], the non-exhaustive list of matters for consideration being as follows:

    •The extent of the delay;

    •The explanation for the delay;

    •Any prejudice to the respondent;

    •The impact on the applicant;

    •The interests of the public at large; and

    •The merits of the substantive application.

11. In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA28 at [13] and [17] – [18], it was held by Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:

    13.“In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. Those principles, which are non-exhaustive of the factors that may be relevant to an extension of time under s 477A(2), include that "[t]he merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted"

    …

    17.French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.

    18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.”

12. Turning to the question of the merits of the substantive application, Counsel for the applicants strenuously argued that the delegate had failed to properly apply or interpret r. 1.1 of the Regulations. Each of the grounds of review were related to that argument, and were centred around the delegate’s findings at pages 534 – 535 of Exhibit 1. [3] It was submitted that the delegate had set too high a bar for qualification for the grant of a visa, and that he had erroneously used the Department’s policy document relating to business-related requirements in doing so. [4]

    [3]           See Exhibit 1 – Court Book.

    [4]           See Annexure BTH-2 to the affidavit of Mr Hartnett filed on 30 October 2024.

13. The findings of the delegate which were most stridently criticised were as follows:

    “In light of its self-serving nature, the additional signed statement by the Company is not sufficiently strong or credible evidence of your having assumed a day to day management and decision making role in respect of the Company. You have not made available any information from an official source, such as government data base, official correspondence and public listings, to substantiate your claim of day to day management involvement and decision making role in the Company. On the other hand, there is in the open source forum information of the Company invariably highlighting Mr Chen as the person in charge but your name was not mentioned. In public Chinese company registration websites, you were not listed as a senior management personnel and only described as a shareholder.

    While it is undeniable that the reference letters from the clients of various projects have proved your involvement in managing the Company’s “projects” especially given your professional qualification as an architect, you did not take part in managing the Company in the manner’s requisite of clause 188.225. By management, it is prescribed in clause 188.225(1)(b) that the applicant maintains, or has maintained, direct and continuous involvement in management of the “business” (not just “projects”) from day to day and in making decisions affecting the overall direction and performance of the business. Under policy, an applicant should demonstrate, amongst other things, that he has been responsible for strategic policy development i.e. he has had a significant impact and influence over the key elements of the business. The reference letters provided were all indicating at your managing the design and progress of the projects in question. They are not however sufficiently strong evidence of your day to day management involvement and strategic decision-making role in the Company.

    In considering whether the requirement of clause 188.225(1) is met, regard has been given to all of the information before me. In light of your level of equity interests in the Company; your role only as shareholder and as Supervisor (briefly) of the Company as stated in the Company’s official registration database; the lack of public information to substantiate your active management involvement in the Company as claimed and the deficiencies of the documents provided by you, I am unable to make a finding that you maintain, or have maintained, direct and continuous involvement in the management of the Company from day to day and in making decisions affecting the overall direction and performance of the Company.

    On all the evidence and information before me, I am not satisfied you have established
    through adequate evidence to substantiate that the Company is your main business as
    stipulated under regulation 1.11. Accordingly, I am not satisfied that you had, for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, an ownership interest in one or more established main businesses that had an annual turnover of at least AUD 500 000 in each of those years. As such, I am not satisfied that you meet clause 188.225(1).”

1. As was pointed out by Counsel for the applicants, and as conceded by Counsel for the respondent, reference to cl. 188.225 in the quoted reasons was erroneous, in that reference to r. 1.11 should have been made instead. The Court considers such error to have been unintentional, and that the delegate had actually intended to fashion the reasons based upon r. 1.11 rather than cl. 188.225.

2. It was submitted on behalf of the applicants that the evidence before the delegate – including the acceptance by the delegate that reference letters from various clients had proven the first applicant’s involvement in managing the company’s projects – ought to have resulted in the delegate finding that the first applicant had satisfied both limbs of r. 1.11(1)(b). It was further submitted that the delegate “ … was distracted by the fact that the applicant was not the majority shareholder.” It was submitted that there was no adverse finding on the first applicant’s credit, and that his stated involvement in the company as being General Deputy Manager ought to have resulted in the visa being approved.

3. The Court does not accept the applicants’ submissions. In the passages of the reasons of the delegate quoted above, the delegate clearly considered, and recognised the distinction between, a requirement for an applicant to maintain direct and continuous involvement in management of a business from day to day on the one part, and the making of decisions affecting the overall direction and performance of a business of the other part. The delegate found that the reference letters which had been provided to the Department were related to managing the design and progress of projects identified, but that there was insufficiently strong evidence of the first applicant’s day to day management, involvement, and strategic decision-making in respect of the company.

4. The submissions made on behalf of the applicants were predicated upon the Court’s acceptance of the proposition that because the major shareholder in the company was said, in a self-serving way by the first applicant, to be an electrical engineer who was “not qualified” and unable to handle the business by herself, such claim ought to be accepted carte blanche. That was not so. The delegate was entitled to find, as the delegate did, that the applicants had not demonstrated that the second limb of r. 1.11(1)(b) had been satisfied.

5. The Court, as a matter of construction, does not accept the submission made on behalf of the applicants that the second limb of r. 1.11(1)(b) was satisfied if the first applicant was “involved in” making decisions affecting the overall direction and performance of the business, however peripherally. Rather, the Court finds that the regulation relevantly required the first applicant, in respect of the second limb, to himself either make the decisions which affected the overall direction and performance of the business, or that he was an integral part of that process, as opposed to his merely being involved, as a minority shareholder or otherwise, in the making of such decisions. The evidence of his playing a major decision-making role was lacking. Had the legislature intended that the regulation have the effect as submitted by Counsel for the applicants, r. 1.11(1)(b) would have been drafted in terms of:

   (b) the applicant maintains, or has maintained, direct and continuous involvement in:

   (i)  management of the business from day to day; and

   (ii) making decisions affecting the overall direction and performance of the business.

6. The Court finds that though the delegate erroneously referred to cl 188.225 when intending to refer to r. 1.11, the delegate did not fail to properly apply r. 1.11. The Court further finds that the applicants have not demonstrated that the delegate has not complied with any obligation owed to the applicants pursuant to the provisions of ss. 54 and 55 of the Migration Act 1958 (Cth) (“the Act”). The delegate appropriately considered the relevant material that had been provided to the Department and which was before her. The delegate set out the significant elements of the evidence which were determinative. The decision of the delegate ought not to be viewed with an eye keenly attuned to error. [5]

   [5]           Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA17 at [24], [25], and [38].

7. Further, the facts of the present matter were distinguishable from those in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168. In Lobo, the Tribunal had equated assessment under departmental policy as assessment under the equivalent of r. 1.11. In the present matter, though having referred to the departmental policy document, the delegate found that an essential pre-requisite for the grant of the visa had not been satisfied. A reading of the criteria in 3.10.1.1 – 3.10.1.3 of the departmental policy would not have distracted the delegate from making the adverse visa refusal decision in any event, as is evident from the delegate’s reasons. The delegate was not satisfied that the evidence justified a finding that the first applicant either made strategic decisions in terms of the second limb of 1.11(1)(b), or that he played an integral part in that decision-making.

8. The delegate considered relevant matters based on the evidence which had been provided to the Department. There was no extreme illogicality. Neither could the decision of the delegate be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

9. In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] – [61] as follows:

   “[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

   [52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

   …

   [54] The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

   [55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

   [56] An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

   [61] For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).”

10. The applicants have failed to establish jurisdictional error on the part of the delegate.

11. The grounds of review are without merit.

12. The extension of time application is dismissed. The Court has found that the substantive grounds of review are unmeritorious, and that there is no utility in the time for the filing of the application for review being extended.

13. The Court will hear the parties as to costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       14 November 2024