Nguyen v Minister for Immigration

[2019] FCCA 2247

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2247

Catchwords:
MIGRATION – Application for spousal visa – failure to meet relevant criteria – no basis for a finding that the Tribunal took irrelevant matters into consideration – lack of materiality of alleged error in any event – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.57, 376.

Migration Regulations 1994 (Cth) Sch.2 cl. 820.211, cl. 820.221.

Cases cited:

Love v State of Victoria [2009] VSC 215.

Minister for Immigration & Citizenship v SZMDS [2010] 240 CLR 611.
Minister for Immigration & Citizenship v Li [2013] 249 CLR 332.
SZUXN v Minister for Immigration & Border Protection [2016] 69 AAR 210.
Hossain v Minister for Immigration [2018] 359 ALR 1.
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 236 FCR 593.

Applicant: VAN DIEP NGUYEN

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVEAPPEALS TRIBUNAL

File Number: BRG 781 of 2018

Judgment of: Judge Egan

Hearing date: 12 August 2019

Date of Last Submission: 12 August 2019

Delivered at: Brisbane

Delivered on: 12 August 2019

REPRESENTATION

Counsel for the Applicant: Mr Nguyen of Counsel

Solicitors for the Applicant: Australasia Law

Solicitors for the First Respondent: Mr McLaren of MinterEllison

ORDERS

1. The amended application filed on 2 May 2019 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 781 of 2018

VAN DIEP NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Vietnam. On 21 April 2015, the applicant applied for a combined Partner (Temporary) and Partner (Residence) Visa on the basis of his having married his sponsor on 11 April 2015.  The applicant arrived in Australia on 7 February 2015 and it would appear that he has resided here ever since. 

2. On 29 August 2016, the Department wrote to the applicant pursuant to the provisions of s. 57 of the Migration Act 1958 (Cth) (“the Act”) and invited the applicant to comment upon adverse information which had been received by the Department. [1]

   [1]     See court book page 173.

3. On 26 September 2016, the Department received a response.

4. On 8 February 2017, the delegate refused the applicant’s visa application.

5. On 21 February 2017, the applicant sought review of the delegate’s decision by filing an application for review by the Administrative Appeals Tribunal (“the Tribunal”). 

6. On 5 July 2018, the Tribunal affirmed the decision under review, refusing to grant to the applicant a Partner Visa. 

7. By an amended application for review filed on 2 May 2019, the applicant set out two grounds of review. Those two grounds are as follows:

   1. The Tribunal engaged in conduct which amounted to jurisdictional error in that:

   (a) When the Tribunal was assessing whether there was a spousal relationship it took into consideration an irrelevant consideration, namely, the sponsor’s suggestion that the applicant find a lawyer to see if their marriage could be registered rather than have him return to Vietnam.

   (b) This irrelevant consideration was sufficiently significant to have materially affected the Tribunal’s decision making consideration.

   2.  The Tribunal engaged in conduct which amounted to jurisdictional error in that its findings that the parties:

   (a) Did not have a joint and shared approach to finances; and/or

   (b) Had no evidence at the time of the visa application that there was any shared household activity, in part because a household was yet to be established.

   These findings were illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds.

8. The relevant background and chronology to the matter was set out by the Tribunal in its reasons at [10] – [17] as follows:

   [10] In November 2007, Mr Nguyen came to Australia for the first time as the holder of a sponsored family visitor visa, and visited again on the same basis between October 2009 and March 2013.

   [11] In 2013, on the third visit, which lasted three months, Ms Do claims she visited Mr Nguyen in Melbourne several times and they developed a romantic interest at this time. The Tribunal notes Ms Do claims this was not their first meeting; in a written submission she stated that they first met in Vietnam in 2010. Mr Nguyen, however, claims the parties first met, in Vietnam, in 2014.

   [12] In July 2013, Mr Nguyen divorced his first wife in Vietnam. There are three children of that marriage.

   [13] In March 2014, Ms Do divorced her third husband. There are three children of the first and third marriages.

   [14] On 7 February 2015, Mr Nguyen arrived in Australia on a visitor visa.

   [15] In March 2015, Ms Do visited Mr Nguyen in Melbourne, returned to Brisbane and then again went to Melbourne, staying with Mr Nguyen’s sister while there.

   [16] On 21 April 2015, Mr Nguyen married Ms Do in Melbourne. He submits that Ms Do returned to Brisbane shortly after the wedding while he stayed on to arrange his affairs before joining her in Brisbane and moving into her home.

   [17] On 21 April 2015, Mr Nguyen lodged a Partner visa application and was granted a Bridging visa A, which remains in effect.

9. The Tribunal had earlier, in [2] of its reasons, and later at paragraphs 18 – 24 of its reasons, referred to the relevant criteria for the grant to an applicant of a subclass 820 (Partner) (Temporary) Visa. In that regard, the primary criteria were those as set out in clauses 820.211 and 820.221 which are as follow:

   820.211

   (1) The applicant:

   (a) is not the holder of a Subclass 771 (Transit) visa; and

   (b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

   (2) An applicant meets the requirements of this subclause if:

   (a) the applicant is the spouse or de facto partner of a person who:

   (i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii) is not prohibited by subclause (2B) from being a sponsoring partner; and

   (c) the applicant is sponsored:

   (i) if the applicant’s spouse or de facto partner has turned 18 – by the spouse or de facto partner; or

   (ii) if the applicant’s spouse has not turned 18 – by a parent or guardian of the spouse who:

   (A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

   (B) satisfies Schedule 3 criterion 3002; or

   (ii) the applicant satisfied Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

   (2A) An applicant meets the requirements of this subclause if:

   (a) the applicant is:

   (i) a SOFA member; or

   (ii) a SOFA forces civilian component member; or

   (b) the applicant:

   (i) is a dependent child of a person referred to in paragraph (a); and

   (ii) holds a valid national passport and certificate that he or she is a dependant of a SOFA forces member or a SOFA forces civilian component member, as the case requires.

   (2B) The spouse or de facto partner of the applicant is prohibited from being a sponsoring partner if:

   (a) the spouse or de facto partner is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application; and

   (b) on the date of grant of that visa:

   (i) the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or

   (ii) the applicant was the spouse or de facto partner of that woman, and that relationship had not been declared to Immigration.

   (5) An applicant meets the requirements of this subclause if:

   (a) the applicant is not the holder of a substantive visa; and

   (b) the applicant last entered Australia as the holder of a Subclass 300 (Prospective Marriage) visa; and

   (c) the applicant has married the Australian citizen, Australian permanent resident or eligible New Zealand citizen whom the applicant entered Australia to marry; and

   (d) the applicant ceased to hold a substantive visa after marrying that Australian citizen, Australian permanent resident or eligible New Zealand citizen; and

   (e) the applicant is the spouse of the sponsoring partner; and

   (f) the applicant is sponsored:

   (i) if the applicant’s spouse has turned 18 – by the spouse; or

   (ii) if the applicant’s spouse has not 18 – by a parent or guardian of the spouse who:

   (A) has turned 18; and

   (B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

   (6) An applicant meets the requirements of this subclause if the applicant:

   (a) is the holder of a Subclass 300 (Prospective Marriage) visa; and

   (b) has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and

   (c) the applicant is sponsored:

   (i) if the applicant’s spouse has turned 18 – by the spouse; or

   (ii) if the applicant’s spouse has not turned 18 – by a parent or guardian of the spouse who:

   (A) has turned 18; and

   (B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (d) continues to be the spouse of the sponsoring partner.

   (7) An applicant meets the requirements of this subclause if:

   (a) the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and

   (b) the applicant has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and

   (c) the sponsoring partner has died; and

   (d) the applicant satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring partner if the sponsoring partner had not died; and

   (e) the applicant has developed close business, cultural or personal ties in Australia.

   (8) An applicant meets the requirements of this subclause if:

   (a) the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and

   (b) the applicant has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and

   (c) the relationship between the applicant and the sponsoring partner has ceased; and

   (d) any 1 or more of the following:

   (i) the applicant;

   (ii) a member of the family unit of the applicant who has made a combined application with the applicant;

   (iii) a dependent child of the sponsoring partner or of the applicant or both of them;

   has suffered family violence committed by the sponsoring partner.

   (9) An applicant meets the requirements of this subclause if:

   (a) the applicant is not the holder of a substantive visa; and

   (b) the applicant has been the holder of a Subclass 300 (Prospective Marriage) visa; and

   (c) while that visa was valid, the applicant married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and

   (d) the relationship between the applicant and the sponsoring partner has ceased; and

   (e) any 1 or more of the following:

   (i) the applicant;

   (ii) a member of the family unit of the applicant who has made a combined application with the applicant;

   (iii) a dependent child of the sponsoring partner or of the applicant or of both of them;

   has suffered family violence committed by the sponsoring partner.

   Note:     For special provisions relating to family violence, see Division 1.5.

   …

   820.221

   (1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:

   (a) continues to meet the requirements of the applicable subclause; or

   (b) meets the requirements of subclause (2) or (3).

   (2) An applicant meets the requirements of this subclause if the applicant:

   (a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and

   (b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and

   (c) has developed close business, cultural or personal ties in Australia.

   (3) An applicant meets the requirements of this subclause if:

   (a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

   (b) either or both of the following circumstances applies:

   (i) either or both of the following:

   (A) the applicant;

   (B) a dependent child of the sponsoring partner or of the applicant or of both of them;

   has suffered family violence committed by the sponsoring partner;

   (ii) the applicant:

   (A) has custody or joint custody of, or access to; or

   (B) has a residence order or contact order made under the Family Law Act 1975 relating to;

   at least 1 child in respect of whom the sponsoring partner:

   (C) has been granted joint custody or access by a court; or

   (D) has a residence order or contact order made under the Family Law Act 1975; or

   (E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

   Note:     For special provisions relating to family violence, see Division 1.5.

   (4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:

   (a) the sponsorship has been approved by the Minister and is still in force; and

   (b) the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).

   Note 1: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister’s discretion to approve sponsorships.

   Note 2: The sponsor may be asked to consent to the disclosure mentioned in paragraph (b) on the approved form required to be completed by the sponsor in relation to the visa application.

   (5) For the purposes of subclause (4), the conviction of the sponsor for a relevant offence is to be disregarded if:

   (a) the conviction has been quashed or otherwise nullified; or

   (b) both:

   (i) the sponsor has been pardoned in relation to the conviction; and

   (ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.

10. Clause 820.221, it is to be noted, required the visa applicant to continue to satisfy the clause 820.211 criteria at the time of the decision unless the relationship has ceased and certain other circumstances exist. There is no suggestion in this matter that any other circumstances existed so as to otherwise cause the Court to focus upon other than the need of the relationship to be continuing at the time of the making of the decision – namely, the claim in relation to family violence was not pressed. 

11. At [25] – [30] inclusive of its reasons, the Tribunal carefully dealt with the relevant considerations which it had to take into account when assessing the applicant’s claims in support of his visa application. The Tribunal, at [30] of its reasons, was sympathetic to the applicant in respect of his having difficulty recalling dates during the course of the hearing. At [31] – [33] inclusive of its reasons, the Tribunal dealt with the financial aspects of the alleged relationship between the applicant and Ms Do, the applicant’s sponsor.

12. It was noted by the Tribunal in [31] of its reasons that, after the applicant and Ms Do had married on 11 April 2015, Ms Do had said to him, “Everything is in place so we leave everything as it is,” in relation to financial resources. The applicant was recorded as saying that Ms Do did not wish to put their finances together because of her previous marital dealings which had been to her detriment in relation to pooling of resources. It was further recorded by the Tribunal that, after the applicant commenced work as a tiler – his being paid about $400 per week in cash – he paid that wage into a joint account which had been established, notwithstanding that Ms Do’s wages were not deposited at the time into that joint account, but into her personal account. The applicant said that, if he ran out of money, the sponsor would contribute to what he called “my account”. The applicant further said that he had not been nominated as a beneficiary to any of the sponsor’s superannuation accounts because, “She had experienced many deceits from past relationships. So she doesn’t trust anyone.” 

13. At [33] of its reasons, the Tribunal found that the joint account had not been often used. The Tribunal found that there had been no plans put in place or “even considered” to jointly own assets or share liabilities in the future. The Tribunal also found that there was little to no combining of financial resources according to documentary and oral submissions, as well as there being no record of any major or minor financial commitments made or liabilities shared. The applicant was recorded as having stated that the sponsor deliberately pursued a strategy of separate financial arrangements so she could protect her own interests and not be financially obligated to the applicant if the relationship ended. It is of note, in that respect, that the sponsor had previously been married on three occasions prior to her marriage to the applicant.  The Tribunal found that it could not place anything other than little weight on the financial aspects of the relationship as being consistent with the claimed spousal relationship at the time of the making of the visa application. 

14. At [34] – [36] inclusive of its reasons, the Tribunal addressed considerations relating to the nature of the household involving the applicant and Ms Do. The Tribunal did record that the applicant had stated that:

    After the marriage papers were signed, he stayed on in Melbourne to sort out his affairs while Ms Do returned to the home she owned in Brisbane.

    It was said that the applicant moved into Ms Do’s home some weeks after the wedding and that, thereafter, the applicant did most of the house and yard work, while Ms Do worked outside the home as an interpreter. The applicant was recorded as having informed the Tribunal that, after he commenced work as a tiler on the Gold Coast, he would be away for a whole week, returning to the home owned by Ms Do on weekends. It was further recorded that the applicant had said that the house and yard work became a major issue within the marriage because, despite his best efforts, his wife, Ms Do, accused him of repeatedly failing to do his duties or to come home on time. 

15. At [35] of its reasons, the Tribunal found that the household aspects were only barely established at the time of the visa application.  It did not accept that the parties were sharing domestic duties from the time of the commencement of the relationship. 

16. Having considered all of the evidence, the Tribunal, at [36] of its reasons, found that it was unable to draw firm conclusions as to whether any household arrangement in fact existed or, if it did, as to what it was. It, therefore, placed little weight on the nature of the household as being consistent with the claimed spousal relationship at the time of the visa application.

17. At [37] – [39] inclusive of its reasons, the Tribunal dealt with the social aspects of the relationship. It specifically dealt with the question as to whether the applicant and Ms Do had represented themselves to other people as being in a spousal relationship with each other, the opinions of the persons, friends and acquaintances about the nature of the relationship, and any basis upon which the persons planned and undertook joint social activities. It was recorded that the applicant had stated that any external social life during their cohabitation had almost entirely revolved around family, including with relatives of Ms Do’s previous husband. As to whether Ms Do presented herself and the applicant as a married couple to friends, he stated that, “I really can’t say.” 

1. At [38] of its reasons, the Tribunal did not accept that there was any evidence of joint social activities with friends or others outside the immediate family as referred to above. A witness to the relationship, one Ngoc Croft, said as follows:

   It is hard to find witness for his genuine marriage. As Diep married in Victoria and in Brisbane he lived a quiet and isolated life with his bride, having no relatives, no friends and just some work mates and church acquaintances. As a result, when the marriage was broken down, there were very few people who knew his real story.

2. At [39] of its reasons, the Tribunal found that the parties did not present themselves as a couple outside the family nor did they undertake joint social activities beyond family events. It, therefore, placed little weight on the social aspects of the relationship as being consistent with the claimed spousal relationship. 

3. At [40] – [45] of its reasons, the Tribunal closely examined the assertion that there was a close personal commitment, each to the other, between the applicant and Ms Do. The Tribunal, in that regard, set out a history advanced to it by the applicant whereby the applicant claimed that he had first met Ms Do in about 2014 in Vietnam. 

4. It is not in dispute that, after the applicant’s arrival in Australia on 7 February 2015, it was not until March 2015 that the applicant met Ms Do. It is further not in dispute that, having so met Ms Do in March 2015, the parties were married some one month later on 11 April 2015, namely after a short period of courtship. 

5. At [41] of its reasons, the Tribunal, when recording what had relevantly happened immediately before the applicant and Ms Do met in Melbourne, recorded the applicant as having said:

   I called her and invited her to Melbourne, she stayed at my sister’s house, I told her I am here as a tourist, she asked about my family circumstances and I told her my marriage had broken down, and she told me she is also divorced and was unhappy and upset about it.  She asked me if I could inquire with a lawyer to see if she could register for marriage with me and be together rather than I having to go back to Vietnam.

6. At [42] of its reasons, the Tribunal recorded that the Department had received certain information which suggested that the marriage between the applicant and Ms Do was a sham. It was explained to the applicant that such assertion was the subject of a certificate issued pursuant to the provisions of s. 376 of the Act.

7. At [43] of its reasons, the Tribunal noted that the relationship had broken down in late 2016 because of what the applicant believed was infidelity on the part of Ms Do. It was at that time that the applicant was asked to leave Ms Do’s residence. 

8. In all of the circumstances, the Tribunal found at [45] of its reasons that the evidence before it did not support the proposition that the applicant and Ms Do had formed a committed and ongoing relationship. It was found that the nature of the relationship was not consistent with being long term as was claimed at the time of the visa application. 

9. Ground 1 of the application for review was the subject of submissions made on behalf of the applicant by Mr Nguyen of Counsel. Mr Nguyen pointed to paragraph 44 of the Tribunal’s reasons wherein the Tribunal stated:

   ... the Tribunal is of the view that Mr Nguyen married Ms Do in order to seek permanent residency, a finding supported by Mr Nguyen’s oral evidence about Ms Do’s suggestion that he find a lawyer and see if they could register rather than have him go back to Vietnam.

10. It was submitted on behalf of the applicant that the Tribunal, in making such finding, materially relied upon an irrelevant consideration, namely, the sponsor’s suggestion that the applicant find a lawyer to see if their marriage could be registered rather than have him return to Vietnam. 

11. Though it is not entirely clear as to what is meant by the words “rather than have him go back to Vietnam”, either in the context of paragraph 44 of the Tribunal’s reasons, or in the context of the content of the translation of the evidence of the applicant before the Tribunal  (seen at page 8 of 23 of exhibit DMJM1 to the affidavit of David Maxwell John McLaren filed by leave today), what is clear is that the Tribunal had regard to the unusual suggestion, at the time of the alleged commencement of the relationship between the applicant and Ms Do, that the applicant “find a lawyer” to see if a then intention to marry could be the subject of registration.

12. In the circumstances, the Court finds that the Tribunal was entitled to infer, as it did, that such suggestion made on the part of the sponsor was designed to ensure that all necessary legal formalities relating to the proposed relationship were to be put in place as a primary consideration, rather than what might normally have been expected to have been the natural progression of a romantic relationship, and the advancement of the bonds of the relationship between the applicant and the sponsor, Ms Do, before formalising a marriage was considered. It was entitled to find that such proposal made to the applicant by Ms Do was so mechanical and lacking in romance so as to not be consistent with an intention to commence a close interpersonal relationship. 

13. The Court considers that, together with all of the other evidence which it had before it, the Tribunal was entitled to have regard to, and take into consideration, the evidence of what Ms Do had said to the applicant about seeing a lawyer and registering a marriage before the marriage had even taken place. Such evidence was relevant when put into the context of the whole of the facts before the Tribunal. The evidence, in that regard, was not irrelevant. [2]   

    [2]     Love v State of Victoria [2009] VSC 215 at [191].

14. As to ground 2 of the amended application for review, the Tribunal made findings of fact relating to the lack of evidence suggesting that the way that the applicant and Ms Do arranged their financial or household affairs was such as to suggest that they were in a genuine spousal relationship. As referred to above, the Tribunal dealt with those matters in considerable detail. The Tribunal has closely examined all aspects of the alleged relationship and found that the applicant did not meet the relevant subclass 820 visa criteria. The Tribunal’s conclusion as expressed in [46] of its reasons was open to it in all of the circumstances. Those were findings of fact not amenable to a merits review.

15. It cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Tribunal.  As was said by Crennan and Bell JJ in Minister for Immigration & Citizenship v SZMDS [2010] 240 CLR 611 at [130]:

    [130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.

16. Neither could the decision 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 & 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.

17. The Court further relies upon, and respectfully adopts, what Wigney J said in SZUXN v Minister for Immigration & Border Protection [2016] 69 AAR 210 at [55], namely:

    [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].

18. Should it be found, however, that the reference by the Tribunal to the evidence of the applicant about Ms Do’s suggestion that he find a lawyer is considered as being illogical or that it otherwise was suggestive of the Tribunal having taken into account an irrelevant matter, the Court is not of the view that any such reliance by the Tribunal upon such evidence was so material as to constitute jurisdictional error.  The Tribunal was entitled to rely upon all of the evidence before it to reach the decision which it did. In that regard, the Court respectfully adopts what was said by Edelman J in Hossain v Minister for Immigration [2018] 359 ALR 1 at [72] where his Honour said:

    [72] In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power.  In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome.  One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness.  Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion. No such circumstances arise on this appeal.

19. Further, in that regard, the Court adopts what was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 236 FCR 593 at [46] – [47] where it was said, per French, Sackville and Healy JJ:

    [46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

    [47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

20. The applicant has failed to establish jurisdictional error on the part of the Tribunal. 

21. The application for review is without merit and is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 22 August 2019