Singh v Minister for Immigration

[2020] FCCA 1183

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1183

Catchwords:
MIGRATION – Application for Partner visa – whether compelling reasons existed for waiver of Schedule 3 criteria – findings of the Tribunal open on the evidence before it – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), Sch.2, cl. 820.211(2)(d)(ii), Sch.3,

cl. 3001.

Cases cited:

Singh v Minister for Home Affairs (2019) 267 FCR 200.

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

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Singh v Minister for Home Affairs [2020] FCAFC 7.

Applicant: ANGREJ SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2262 of 2016

Judgment of: Judge Egan

Hearing date: 14 May 2020

Date of Last Submission: 14 May 2020

Delivered at: Brisbane

Delivered on: 15 May 2020

REPRESENTATION

Solicitors for the Applicant: Mr Warraich, Solicitor of HUK Legal

Counsel for the First Respondent: Mr Murano

Solicitors for the First Respondent: Australian Government Solicitor

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The Amended Application for review filed on 3 April 2020 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 2262 of 2016

ANGREJ SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India. He arrived in Australia on 5 May 2009 as the holder of a Dependent Student visa. That visa was cancelled on 2 August 2011. The applicant’s first wife had completed her studies and returned to India. The parties were divorced. The applicant subsequently remained in Australia as an unlawful non-citizen until he applied for a Partner (Temporary) (Class UK) Subclass 820 visa on 27 March 2014. The basis for his having applied for a Partner visa was his stated relationship with a female sponsor.

2. On 23 September 2014, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl. 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

3. The applicant did not satisfy cl. 3001 of the relevant Schedule 3 criteria because his application for the visa was lodged some two (2) and a half years after the date of cancellation of the Student visa, that being a time well after the requisite twenty-eight (28) day limitation period specified for the making of any application. The delegate did not find that there were any compelling reasons which justified waiving the Schedule 3 criteria.

4. A subsequent application to the Migration Review Tribunal (‘MRT’) made on 10 October 2014 affirmed the decision of the delegate. That decision of the MRT was remitted by consent to the Administrative Appeals Tribunal (‘the Tribunal’) for further review because of conceded jurisdictional error.

5. On 4 July 2016, the Tribunal invited the applicant to attend a hearing and give oral evidence before it. Written submissions were provided by email to the Tribunal by a representative of the applicant on 18 September 2016.

6. On 22 September 2016, the applicant appeared at a hearing before the Tribunal, at which time he was assisted by a representative, and by an interpreter in the Punjabi language. At the conclusion of the hearing, the Tribunal orally affirmed the decision of the delegate to not grant the visa to the applicant. Written reasons for the decision were given on 21 November 2016.

7. An Originating Application for review was filed on 18 October 2016. At the hearing before the Court, the applicant relied upon an Amended Application for review filed on 3 April 2020, the grounds of which were as follows:

   “Grounds of application

   1. The Tribunal erred by failing to take into account all of the claims made by the Applicant.

   PARTICULARS

   a) The Tribunal failed to take into account the illiteracy and poor education of the applicant in support of a claim that the Applicant didn’t comprehend the implications of meeting of additional criteria under schedule 3 of Migration Regulations 1994,

   b) The Tribunal accepted that the applicant had limited education and is from a different cultural background,

   c) The Tribunal failed to take into account the financial and personal distress confronted by the Applicant throughout his stay in Australia.

   2. The Tribunal purported to exercise its jurisdiction in a manner that was unreasonable.

   PARTICULARS

   (a) The Tribunal noted that the factors appear to be compelling reasons for leaving Australia and applying for the visa offshore. This tantamount the very fact that the Applicant meets the criteria of visa application. This substantiates the fact that the relationship is genuine and the Tribunal’s findings that the Applicant manipulated is not based on facts.

   (b) The Tribunal’s findings are itself full of contradictions that substantiate the Applicant’s circumstances to waive the schedule 3 criteria of the MIGRATION Regulation 1994.”

8. The applicant’s submissions were set out at paragraphs [2] – [9] of the outline of submissions filed on 15 April 2020 as follows:

   “[2] The Applicant came to Australia with his ex-wife Rajinder Kaur as a secondary applicant being a spouse of the substantive visa holder on a student visa. Review applicant's wife was studying commercial cookery and returned to her country of origin - India on the completion of her studies. The matrimonial relationship of the Review applicant with his wife ended and irretrievably broken down and led to parties divorcing each on by virtue of the order dated 12th October 2012 made by the Federal Magistrates Court Australia at Melbourne.

   [3] It may be emphasized that the applicant is educated in India only up to Class 10 school examination. At school the Applicant's medium of study was vernacular language (Punjabi). The applicant has a very limited understanding of English language and can only express himself with the help of an interpreter. The applicant cannot write English properly and understands the language just barely. As the education of his wife getting expensive and it was difficult to find work at Melbourne on account of Applicant's limited ability to do any work requiring skills and training, the Applicant was advised to look for work in the farm as a farm hand. On or about in the month of March 2011 the applicant left for Darwin for the purposes of finding work in the farm as a farm hand. The Applicant stayed at Darwin for approximately a period of 7 months and worked at a farm helping the farmer. On the completion of the season, the applicant moved towards Cairns to do more work, as work at Darwin was seasonal and finished by that time. On or about in the month of October 2011 the Applicant move to Cairns where he worked as a farm hand for a period of approximately 6 months. The applicant stayed at Cairns till April 2012. On or about in the month of April/May 2012 the applicant moved to Adelaide to find work and stayed there for a period of 8 months up to January 2013. The Applicant worked as a farm hand in the farms at South Australia in the proximity of Adelaide. On or about February 2013 the Applicant moved to Robin vale Victoria and worked there at a farm for a period of one year till January 2014. During the period mentioned above the Review applicant was able to maintain himself from the limited earning he made from working as a farm hand.

   MARRIAGE IN 2014

   [4] On or about in the month of February 2014 the Review applicant came to Melbourne where he tied knot to his wife. As a matter of fact, the applicant knew his sponsor for a period of two years immediately prior to the marriage. The applicant states that at the time of making an application for the Partner visa the Review applicant was under the belief that he holds a visa and is not unlawful citizen. The applicant states that had he knew that he did not have any substantive visa during the period between 2011 and 2014 till the filing of the application for Partner visa, the Review applicant would have taken steps to cure the situation. There were compelling circumstances, which led to Review Applicant's belief that he is a lawful citizen on account of the following factors:

   a. Limited ability to converse in English;

   b. No information or correspondence received from the DIBP in respect of Review applicant's Visa status;

   c. Limited understanding of the visa process and the awareness about the compliance matters;

   d. Cultural factors including little understanding of the matters which matters to Australian life and values.

   [5] On or about 24th February 2014, the Review applicant married his sponsor at Melbourne in the presence of marriage celebrant and witnesses required under the law. Having married to his sponsor the applicant made a request to DIBP for work rights however the said application was rejected.

   [6] Consequently, the Review applicant could not work and sustained himself on his savings and the contributions made by his friends. It may be emphasized that the household expense were borne by the Sponsor of the Review applicant who had been receiving the Centre link benefits.

   [7] It may also be emphasized that the inability of the applicant to work led to the deterioration of the relationship between the Review applicant and his sponsor as it was too much pressure on Review applicants' spouse / Sponsor to sustain and maintain the household and responsibilities of the Review applicant.

   [8] During all these times, the Review applicant did not have a proper representation and had been struggling to get representation on account of his limited understanding of the underlying issue, cultural factors and the financial capacity not to mention the believe in the system which would help him in the circumstances and exceptional circumstances the applicant has been through the years of hardship and distress The applicant submits that on the basis of facts indicated above the criteria under Schedule 3 should be waived in his favour and the applicant was faced with situations and circumstances, which are exceptional in nature. In the given situation, it is prayed that this Honourable Federal Circuit Court be considerate of the situation of the applicant.

   [9] In these circumstances here, it should be concluded that the error was so serious and significant to the Tribunal’s rejection of the appellants’ claims as to amount to jurisdictional error.”

9. At [4] – [6] inclusive of its reasons, the Tribunal appropriately set out the relevant criteria which had to be met by the applicant for the grant to him of the visa. It correctly determined that the applicant could only be granted the visa if there was a waiver of the relevant Schedule 3 criteria for compelling reasons. Clause 820.211(2)(d)(ii) of Schedule 2 to the Regulations relevantly provided as follows:

   “820.21 – Criteria to be satisfied at time of application

   820.211

   …

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

   …

   (d) in the case of an applicant who is not the holder of a substantive visa – either:

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

10. At [6] of its reasons, the Tribunal recorded that it was required to consider whether there were compelling reasons for not applying the Schedule 3 criteria. At [7], it was recorded that when it was put to the applicant that he had overstayed his visa and remained in Australia unlawfully between 2 August 2011 and 27 March 2014, the applicant said that he believed that he had a visa entitling him to stay. When the applicant was asked how long he thought his visa was for at the time he arrived in Australia, the applicant replied “four or five years”. At [8] the Tribunal pointed out that if the applicant had a valid visa for a four (4) year period then that visa would have expired on 5 May 2013, well before he applied for a Partner visa on 27 March 2014. To that, the applicant said he had no knowledge of the law or what he had to do.

11. At [9] – [12] of its reasons, the Tribunal considered the applicant’s claims that his cultural background, poor education and poor literacy ought to have been taken into account when the delegate was considering whether or not there were compelling circumstances or not for the waiver of the Schedule 3 criteria. The Tribunal did not accept that the applicant did not know that he had unlawfully remained in Australia after the cancellation of his Student visa. It further found that the applicant had deliberately manipulated his circumstances so as to give rise to compelling reasons for the grant to him of the visa.

12. At [13] – [16] of its reasons, the Tribunal recorded that the applicant’s relationship with his sponsor had ceased because of fights over money. The Tribunal noted that the applicant had family in India and that he had matters to attend to there, including outstanding debts.

13. At [17] and [18] of its reasons, the Tribunal recorded that it was not persuaded that there were any compelling reasons for waiver of the Schedule 3 criteria.

Grounds for Review

Ground 1

1. This ground asserted that the Tribunal failed to intellectually engage with the applicant’s claims, namely that the Tribunal failed to take into account the illiteracy and poor education of the applicant in support of a claim the applicant did not comprehend the implication of meeting additional criteria contained in Schedule 3 to the Regulations.

2. Whether or not a Tribunal had sufficiently considered claims as to whether or not there were compelling reasons for waiver of relevant Schedule 3 criteria or not was discussed in Singh v Minister for Home Affairs (2019) 267 FCR 200 at [34] – [38] per Reeves, O’Callaghan and Thawley JJ as follows:

   “[34] The principle is directed to the question whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute. If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise. Likewise, a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if — for example — it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:

   • a “substantial, clearly articulated argument relying upon established facts” — see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;

   • a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” — see: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or

   • a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” — see: ETA067 v Republic of Nauru (2018) 92 ALJR 1003; 360 ALR 228 (ETA067) at [14] per Bell, Keane and Gordon JJ.

   [35] However, it is important to recognise that the ultimate concern is with the identification of jurisdictional error: the Tribunal not performing the function entrusted to it or not performing it in an authorised way. The Full Court in Carrascalao at [32] cautioned against allowing this ground for judicial review to slide into merits review:

   The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide” into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA’s comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).

   [36] The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.

   [37] In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:

   (1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

   (2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

   (a) the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272;

   (b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

   (c) a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].

   [38] In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs(2003) 216 CLR 473 at [1], Gleeson CJ made the following observations about the recasting or narrowing of focus that often occurs in an applicant’s case as it proceeds through the various stages of decision-making constituting the system of judicial review of administrative action. While these observations concerned a refugee visa application, we consider they apply with equal force to a visa application of the present kind:

   The system of judicial review of administrative action, as it operates in relation to visa applications by people seeking acceptance as refugees, often means that, by the time a case reaches this Court, it is at the fifth level of decision-making. It may be, as in this case, that there have been adverse decisions at the first and second levels (the Minister’s delegate and the Refugee Review Tribunal (“the Tribunal”)) and that the Tribunal’s decision has been upheld at the third (Federal Court of Australia) and fourth (Full Court of the Federal Court) levels. It may not be surprising that, at the fifth level, an appellant will look for a new way of putting a case that has already failed on four occasions. The case put to this Court may bear little relationship to what was previously advanced, considered, and rejected. There is a risk that criticism of the reasoning of a decision-maker at an earlier stage might overlook the forensic context in which such reasoning was expressed; a context that may have changed almost beyond recognition. Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process …”

1. In this matter, the Tribunal did have regard to the applicant’s illiteracy and poor education, as well as his cultural, financial and personal circumstances at [8] – [16] of its reasons. At [11] of its reasons, the Tribunal noted that the applicant followed what were quite complex legal issues at the time of the hearing, the applicant responding appropriately in relation to such issues. The Tribunal, it should be noted, was considering the applicant’s claims in the context of the applicant being a person who had lived in Australia continuously over a seven (7) year period prior to the date of the Tribunal hearing, in circumstances where he had travelled throughout the country to obtain employment. [1] Further, there is no merit to the submission that the applicant didn’t know of his unlawful residency status because the department had not told him so. There was no such obligation.

   [1]        Paragraphs [5] – [10] inclusive of applicant’s affidavit filed on 18 October 2016 – Court Book

2. It cannot be said that the Tribunal did not actively intellectually engage with the substance of the applicant’s claims, limited as they were. The reasons advanced by the applicant were considered but dismissed. Having weighed up and considered all of the applicant’s claims, the Tribunal found that there were no compelling reasons justifying waiver of the Schedule 3 criteria. It was, on the evidence, entitled to so find.

Ground 2

1. By this ground, it was claimed that the Tribunal acted unreasonably in failing to find that there were compelling reasons for waiver of the Schedule 3 criteria. Ground 2(a) constituted a complaint as to the Tribunal’s findings, and essentially sought a merits review by this Court of the findings of the Tribunal. This Court is not empowered to do so.

2. There was no merit to the implied contention that the reasons of the Tribunal were illogical or irrational, Those principles were discussed in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] – [61] per McKerracher, Griffiths and Rangiah JJ where it was said:

   “[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR210, 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]).”

3. This is not a case where the Tribunal has exhibited extreme illogicality in its reasoning processes. The Tribunal addressed each and every of the applicant’s claims. The Tribunal did not err by making reference to the applicant leaving Australia to lodge an offshore application for a Partner visa, in circumstances where that is precisely the consequence of an applicant failing to satisfy the Tribunal that it should waive the relevant Schedule 3 criteria. The Tribunal was there merely stating the obvious, particularly in circumstances where the applicant had conceded that his second relationship with his sponsor had broken down at the time of the decision. The Tribunal’s reference to such was not a concession on its part that compelling reasons existed for waiver. The Tribunal actively engaged with the applicant’s claims about how financial concerns had given rise to the relationship breakdown. The Tribunal noted that the applicant had a child in India and that he had debts in India. The fact that those matters were raised by the Tribunal, in its reasons, reflected its holistic consideration of all of the applicant’s claims and the evidence before it.

4. The Tribunal’s finding at [12] that the applicant had deliberately manipulated his circumstances to seek to give rise to compelling reasons was made in the context of “ … the applicant’s migration history and compliance with his visa conditions.” Immediately after having so found, it was recognised by the Tribunal that it had to further consider the applicant’s claims, and that notwithstanding such finding “ … the law requires that I consider the applicant’s compelling reasons and with a consideration as to whether the Schedule 3 criteria should be waived.”

5. Hence, even if the finding of the Tribunal that the applicant had deliberately manipulated his circumstances so as to improve his migration outcome was not open on the evidence before it (something which this Court does not find), such finding was immaterial, in any event, because the Tribunal independently recognised that it should go on to consider whether or not there were compelling reasons for waiver. Any error on the part of the Tribunal, in that respect, could not have realistically resulted in a different decision being made. As was said in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] and [46] per Bell, Gageler and Keane JJ as follows:

   “[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

   [46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”

6. When assessing whether there were compelling reasons or not, the Tribunal had the advantage of having heard the evidence given by the applicant at the time of the hearing. It also had the advantage of weighing up all of the evidence in the light of the long period of time that the applicant had lived and worked in Australia since his arrival in 2009, as well as the contacts which he had made over time other than with members of the Punjabi community. Having done so, it made a decision which was open to it on the evidence.

7. It has long been accepted that different minds might legitimately reach different conclusions. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:

   “[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.”

8. There is no merit to Ground 2(a) of the Amended Application for review.

9. As to Ground 2(b), such ground was un-particularised and meaningless. To the extent that that was so, and for the same reasoning as given in respect of Ground 2(a), this ground is without merit. As was said by Derrington J in Singh v Minister for Home Affairs [2020] FCAFC 7 at [77] – [79]:

   “[77] Consistently with the manner in which most administrative law matters are agitated in this Court, the appellant did not articulate any principled approach to the attack which he mounted on the Tribunal’s fact finding.  Vague references were made to Li, but that decision is not relevant to the present issue. The alleged erroneous fact finding occurred in the formation of a subjective state of mind, being the non-satisfaction that there were compelling reasons for not applying the Schedule 3 criteria.  The manner in which a vitiating error in fact finding or reasoning might occur in that process has been articulated in a number of authorities including R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432; Avon Downs; Buck v Bavone (1976) 135 CLR 110 at 119; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J; SGLB; Eshetu at 657 [147] per Gummow J; and SZMDS, all of which were recently considered in EHF17 at [59]-[88].  Relevant to the issue raised in this matter is the passage from the reasons of Gummow and Hayne JJ in SGLB at 998 [38], which was variously approved by Gummow A-CJ and Kiefel J and by Crennan and Bell JJ in SZMDS, to the following effect:

   The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.  

   (footnote omitted)

   [78] As was observed in EHF17 at [75], that passage was reflective of Gummow J’s observations in Eshetu at 657 [147] that a subjective jurisdictional fact does not exist if it is founded upon “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds”.

   [79] It must be kept steadily in mind that the reasons of the decision-maker ought not to be overly scrutinized upon an over-zealous attempt to discern some inadequacy: D’Amore v Independent Commission Against Corruption [2012] NSWSC 473 at [87] per McClellan CJ at CL; and that administrative fact finding is significantly different to the curial process: Eshetu at 656 [143] per Gummow J.”

10. No jurisdictional error has been established on the part of the Tribunal.

11. The Amended Application for review is without merit and is dismissed.

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

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 15 May 2020

         (CB) pp. 9 – 10.