S.E. and Sons Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 57
•20 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
S.E. & Sons Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 57
File number(s): BRG 520 of 2020 Judgment of: JUDGE EGAN Date of judgment: 20 September 2021 Catchwords: MIGRATION – Nomination application under Employer Nomination Scheme – whether company viable having regard to its demonstrated income and the requirement for it to employ nominee full time over a two year period – whether decision maker was unqualified to decide question – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 140GB, 363(1)(d)
Migration Regulations 1994 (Cth) r 5.19
Cases cited: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Sellamuthu v Minister for Immigration (1999) 90 FCR 287
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 8 September 2021 Date of hearing: 8 September 2021 Counsel for the Applicant: Mr L. Karp Solicitor for the Applicant: Hartnett Lawyers Counsel for the First Respondent: Ms E. Hoiberg Solicitor for the First Respondent: Minter Ellison Second Respondent: Submitting appearance save as to costs ORDERS
BRG 520 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: S.E. & SONS PTY LTD ACN 132 503 783
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SEVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
20 SEPTEMBER 2021
IT IS ORDERED THAT:
1.The Further Amended Application for Review filed on 27 July 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $7, 467.00.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
On 27 June 2017, the applicant lodged an application under s. 140GB of the Migration Act 1958 (Cth) (‘the Act) for the nomination of one Mr Kamaljit Singh Nijjer as a prospective employee under the Employer Nomination Scheme (Subclass 186) Visa program for the position of Facilities Manager (ANZSCO 149913). The relevant facility operated by the applicant was a mechanical repair business. It was proposed that the applicant would be employed on a salary of $55.000.00 per annum.
Section 140GB of the Migration Act 1958 (Cth) (‘the Act’) relevantly provided as follows:
“140GB Minister to approve nominations
(1) An approved sponsor may nominated:
(a) an applicant or proposed applicant for a visa of a prescribed kind (however described), in relation to:
(i)the applicant or proposed applicant’s proposed occupation; or
(ii)the program to be undertaken by the applicant or proposed applicant; or
(iii)the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2) The Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied.”
The prescribed criteria that were required to be satisfied were those under r. 5.19 of the Migration Regulations 1994 (Cth) (‘the Regulations’).
Regulation 5.19(3)(d) of the Regulations relevantly provided as follows:
“Reg 5.19 - Approval of nominated positions (employer nomination)
…
Temporary Residence Transition nomination
(3) The Minister must, in writing, approve a nomination if:
(a) …
(b) …
(c) …
(d) for a person to whom subparagraph (c)(i) applies:
(i)the person will be employed on a full‑time basis in the position for at least 2 years; and
(ii)the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)…”
On 6 February 2018, a delegate of the Minister refused to grant the visa application on the basis that the company failed to comply with r. 5.19(3)(f) of the Regulations – namely, that the applicant failed to maintain their commitment to ongoing training of Australian citizens and permanent residents in their industry, as specified within their training benchmarks.
On 22 February 2018, the applicant lodged an application for review of the delegate’s decision by the Administrative Appeals Tribunal (‘the Tribunal’).
On 24 February 2020, the Tribunal wrote to the company inviting it to submit updated information addressing r. 5.19(3) issues. [1] On 9 March 2020, a submission was lodged in response to this invitation on behalf of the applicant.
[1] Court Book (CB) p 366 – 368.
On 23 June 2020, Mr Ertan Yasar, a director of the applicant, appeared before the Tribunal for the hearing of the application for review. On 7 July 2020, the applicant lodged a further submission, addressing the Tribunal’s concerns regarding the financial status of the company.
On 12 August 2020, the Tribunal affirmed the decision of the delegate.
On 16 September 2020, the applicant lodged an Originating Application for Review of the decision of the Tribunal.
Grounds for Review
At the hearing before the Court, the applicant relied upon a Further Amended Application for Review filed on 27 July 2021, the grounds of which were as follows:
“Grounds of the further amended application
1. The Tribunal erred in failing to lawfully consider relevant information in its assessment of whether the applicant company was financially viable.
Particulars
(a) That information was in the company balance sheets for the years ended 30 June 2018 and 30 June 2019 which indicated that the company had considerable assets.
2. The Tribunal decision was affected by legal unreasonableness.
Particulars
(a) The Tribunal’s finding that the applicant company was not financially viable was legally unreasonable because it failed to consider the assets and equity of the company as shown in the balance sheet in considering its viability.
(b) It was unreasonable for the Tribunal to in effect as an expert and in so doing prefer its own lay analysis to that of a professional accountant that had assessed the applicant company as being financially viable.
(c) In circumstances where the Tribunal possessed neither qualifications nor expertise in accounting or in the analysis of financial data, it was unreasonable for it to fail to consider utilising its power under s. 363(1)(d) of the Migration Act to obtain for itself either or both,
(i) An expert report on the financial viability of the applicant company,
(ii) An expert report critiquing the report of the company accountant.
(d) It was unreasonable for the Tribunal to draw conclusions as to the ability of the financial capacity of the applicant company to pay the stated salary of the visa applicant by extrapolating from a single BAS return.”
Ground 1 of the Further Amended Application was a claim that the Tribunal had failed to lawfully consider relevant financial information, namely the company balance sheets for years ended 30 June 2018 and 2019, in its assessment of whether the applicant was financially viable.
First, the Court accepts the submission made at [9] of the first respondent’s submissions that it cannot be inferred that the Tribunal overlooked the relevant balance sheets.
At [2] – [3] of its reasons, the Tribunal appropriately set out the requirements for the approval of the nomination of a position in Australia in the Temporary Residence Transition nomination stream under r. 5.19 of the Regulations.
At [14] of its reasons, the Tribunal recorded that the average pay scale for a facility manager in Brisbane was for an amount of $79,900,98.00.
At [43] of its reasons, the Tribunal noted that it had reached its decision with a careful evaluation of all of the evidence before it, including testimony given at the hearing, and an analysis of that evidence. The Tribunal said as follows:
“[43] The Tribunal has reached this decision with a careful evaluation of all evidence including testimony at hearing and after an analysis of that evidence.”
At [12], [13] and [14] of its reasons, the Tribunal individually identified sixty-seven (67) documents which were put before the Tribunal on behalf of the applicant as constituting relevant information for assessment on the question of the applicant company’s viability. It is apparent, from a reading of [19] – [41] of its reasons, that the Tribunal had regard to submissions made on behalf of the applicant company’s migration agent in the context of the documentation produced on behalf of the applicant. It is also apparent that the Tribunal undertook an analysis of such documentation, including its relevance to the question of the company’s viability.
At [19] – [27] of its reasons, the Tribunal analysed the migration agent’s submissions as to why the Tribunal ought to confine its consideration of the nomination application to the question of the training requirement on which the delegate based the adverse finding. At [24] of its reasons, the Tribunal clearly indicated that its considerations would not be so limited, and that it would address each clause and sub-clause of r. 5.19(3) to consider whether those clauses had or had not been met. The Tribunal did not err in doing so.
At [28] of its reasons, the Tribunal noted the application of r. 5.19(3)(d) of the Regulations.
At [28] – [41] of its reasons, the Tribunal appropriately gave consideration to relevant financial information, including the applicant’s income and expenses in the financial years of 2018 and 2019, a letter from the accountant addressing the applicant’s financial viability, relevant cash flow projections of total revenue and expenses, and a business activity statement provided by the applicant for the first quarter of 2020.
At [31] of its reasons, the Tribunal quoted a substantial part of the applicant’s migration agent’s letter of 9 March 2020. [2] At [32] of its reasons, when expressing doubt about the nature of the submissions made to it about the company’s viability, the Tribunal said as follows:
“[32] The Tribunal accepts that the employer produced $1 million gross income in FY2019, increased its assets from FY 2018 to 2019 and increased its non-current assets, however, it cannot accept that the applicant, namely S.E. & Sons Pty Ltd, was involved or suffered detriment due to the taxi leasing business which is owned and operated by another legal entity, Yasar Management Pty Ltd. In fact, during the hearing Mr Yasar stated that the taxi business had been assisting to subsidise the mechanical workshop. These factors do not change the loss of $54,305 for the FY 2019 nor the accumulated tax losses of $421,669.”
[2] CB 369 – 378 (at [2] and [3] of paragraph 22 on CB 372) – see also letter dated 9 March 2020 from
The Court finds that the Tribunal did consider relevant information before it prior to arriving at its decision. As submitted on behalf of the first respondent, it was open to the Tribunal to place greater weight on the 2019 financial year loss, and accumulated tax losses, rather than upon the disclosed balance sheet position of the company, for the purpose of its assessing whether the nominee would be able to be employed on an ongoing basis for two years at the stated projected income figure of $55,000.00 per annum. The Tribunal was entitled to have regard to all relevant information, including the 2019 profit and loss statement for the company, which indicated that for the financial year ending 30 June 2019 the company suffered a total operating loss of $54,305.00. [3] There is no merit to Ground 1 of the Further Amended Application for Review.
[3] CB 571.
As to Ground 2, the applicant claims that the decision of the Tribunal was legally unreasonable.
At [46] of its reasons, having evaluated the evidence before it, the Tribunal appropriately found as follows:
“[46] The Tribunal has considered the statements made by the applicant and the accountant regarding the expansion of the business and the projected increase in revenue for FY 2020, but finds these are not supported by the figures in the BAS for Q1 which show a concerning decline in revenue of 66% for the quarter compared to the revenue results for FY 2019. Taking this into account with the loss of $54,305 for FY 2019 and the accumulated tax losses of $421,669, the Tribunal finds for a person to whom subparagraph (c)(i) applies, namely the nominee, the nominee will not be employed on a full time basis in the position for at least two years as the applicant is not financially viable.”
As to Ground 2(a), it ought to be noted that r. 5.19(3)(d) goes to the question of the ability of a company to employ someone full time over a two (2) year period. The asset value of a company does not necessarily correlate with profitability. A company can be asset rich but income poor. Whether or not an asset rich but profit poor company might be able to borrow to fund an employee such as the nominee is always dependent upon the commercial lending practices evident from time to time. So much is trite. There was no evidence before the Tribunal as to the applicant company’s borrowing capability. The onus was on the applicant to adduce appropriate evidence so as to persuade the Tribunal in that respect. It failed to do so.
The Tribunal’s assessment based upon r. 5.19(3)(d) considerations was that the loss of $54,305.00 in the 2019 financial year, when combined with the decline in revenue of 66% for the January – March 2020 period, did not establish an ability on the part of the applicant company to be able to continue to employ the nominee on a full time basis over a two (2) year period. Such finding was open to the Tribunal on the evidence before it.
A high bar must be met to establish legal unreasonableness. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] explained that:
“[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11] Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”
It could not be said that the decision of the Tribunal member was one which no reasonable person could have arrived at. Ground 2(a) is without merit.
Grounds 2(b) and 2(c) focus on what was asserted to be the Tribunal member’s lack of demonstrated expertise in accounting matters. It was claimed that the Tribunal member ought not to have preferred her own lay analysis as to what constituted a company’s viability, as opposed to the expressed opinion of the applicant’s own accountant. The accountant’s opinion, upon which reliance was placed by the applicant, was in large part based upon an optimistic hypothesis of increased profitability, and was, in part, as follows:
“We consider that with the expansions of the business, that the business will be able to undertake more work which will effectively increase their revenue over the next few years. As the business pays its expenses and liabilities, we consider that the business will be operating at a profit in the next one to two years.” [4]
[4] CB 494.
As to the lack of competence allegation, the applicant sought to rely upon an affidavit of one Mr Hartnett, filed on 16 June 2021, which annexed certain biographical information concerning the Tribunal member. As to that information, and notwithstanding that a perusal of it indicates that it is far from exhaustive, it nonetheless indicates that the member has at least been engaged in commercial activities (both as a primary producer and otherwise) since 1978. One would have thought that such business involvement would have enabled her to appreciate the significance of profit and loss statements, and balance sheets, for the purpose of her undertaking a statutory duty which required a consideration of a company’s viability. A person in the position of the Tribunal member does not need specific qualifications in any particular field before being able to make decisions about matters before them. What the annexed documentation does demonstrate is that the Tribunal member has had substantial life experience involving a wide range of interests. Additionally, she received the distinction of being elected as a member of Parliament, a role which included Ministerial appointments in the Commonwealth Government.
Quite apart from her demonstrated life experience, and the acceptance by the Court of the notion that the Tribunal member would have been likely, due to her appointment as a Tribunal Member, to have had some accumulated institutional knowledge concerning the questions raised in the current matter, the Court finds the submission concerning the Tribunal member’s asserted lack of qualification to make a decision to be unmeritorious, and an attempt to unnecessarily, and unkindly, demean her. For sound policy reasons, Courts ought not to allow parties to resort to personalised attacks on the capacity of decision makers to duly carry out their statutory roles, particularly in circumstances where they have been duly appointed to do so. If this Court was to find for the applicant on this claim, the floodgates would surely be seen to have been opened. There is no merit to such claim.
The Tribunal was not required to set out each and every element of its decision making process before arriving at its decision. As was said by French, Sackville and Healy JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] – [47]:
“[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.”
It was further claimed that the member ought to have exercised power under s. 363(1)(d) of the Act, which section relevantly provided as follows:
“Section 363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) …
(b) …
(c) …
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.”
The applicant relied upon Sellamuthu v Minister for Immigration (1999) 90 FCR 287 at [19], but importantly, the part of that paragraph quoted at [32] of the applicants submissions [5] did not reveal that the Full Court was there dealing with a ground of appeal, upheld by the Court, that the RRT member had failed to have regard to clearly articulated submissions made during the course of the review by the appellant/applicant’s solicitor. The Full Court, at [14] – [17] of its reasons, per Wilcox and Madgwick JJ, said as follows:
[5] Applicant’s submissions filed on 27 July 2021
“[14] The appellant's solicitors submitted to us that, notwithstanding its rejection of his client as a person worthless of credit, indeed as a liar, the RRT was still faced with the following issues:
(I)Despite the appellant’s unreliability, was the more or less objective circumstantial evidence sufficient to satisfy the RRT that he nevertheless had been mistreated by the Sri Lankan authorities and might therefore fear more mistreatment? This circumstantial evidence included: the applicant’s arrival in Australia without travel documents and with distinct psychological impairment; the consistency of his psychological difficulties with those to be found following traumatic events; that as a young adult male Tamil from the North, he would appear to be a prime target for governmental interest; the penchant of some elements of the security forces for persecution of Tamils; the likely governmental lack of interest in punishing such excesses.
(2) If the appellant had indeed suffered no actual harm in the past, what nevertheless would be his future on account of his race and/or the possible imputation to him of a political opinion supporting the LTTE? This was the key and ultimate question. All others were subsidiary to it and, as it appears, capable of distracting from it.
[15] Neither of these questions was answered by the Tribunal. The reason for this seems to be that the RRT was of the view that:
(i) the real case of the appellant, as orally presented by his solicitor, was that there was “a real chance that the appellant would be detained and tortured if he returned to Sri Lanka on the basis that the appellant had been detained and tortured by the Army in the past” (emphasis added);
(ii) it did not accept past mistreatment of the appellant because of his unreliability; and
(iii) it did not accept “that all Tamils in Sri Lanka have a well-founded fear of being persecuted merely by reason of their race” (emphasis added).
The RRT concluded that, “it follows that I do not consider that there is a real chance that he will be arrested, detained or tortured” if the appellant returned.
[16] With respect, no such thing follows. In the first place, it does not appear (and the RRT did not suggest) that the appellant’s solicitor abandoned any of his detailed earlier submissions. It is true that regard may be had to the way a case is presented, but not so as to relieve the Tribunal of the burden of considering the entire case (this is discussed in greater detail below). In the second place, there were particular things about this Tamil in Sri Lanka that might mark him out as being more exposed to a real chance of persecution than some others. Such persecution might be by reason of an imputed political opinion, as well as, or instead of, his race.
[17] In the result, important elements of the appellant’s claims requiring consideration by the RRT were not considered. This, in our view, constitutes reviewable legal error in a number of ways.”
The case of Sellamuthui was clearly distinguishable from the present.
It could not be said that there was any obvious matter, either technical or general in nature, which was so essential for determination by the Tribunal that the Tribunal ought to have sought assistance in respect of its investigation of the facts before it. There was no reason why, in the circumstances, the Tribunal ought to have exercised any power under s. 363(1)(d) of the Act.
Further, it cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
There is no merit to Grounds 2(b) and 2(c). No legal unreasonableness has been established.
As to Ground 2(d), there is no merit to such ground. The assumption on which the ground was based was non-existent. The Tribunal did not confine itself to an examination of only one document before arriving at its decision. Its reference to the January – March 2020 BAS return was but one example of how, cumulatively, the evidence before the Tribunal did not satisfy it that the applicant company was viable, in the sense of its being able to employ the nominee on a full time basis over a two (2) year period. Such finding was open on the evidence before the Tribunal. Another reasonable, rational and logical decision maker could have arrived at the same decision.
As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[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.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal 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.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Dated: 20 September 2021
applicant company’s accountants at CB 490 – 494.
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