FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZALG v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1529 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa to the applicant – applicant claims that Administrative Appeals Tribunal did not consider his claims pursuant to his homosexuality and political involvement while in Nepal – applicant alleges procedural unfairness – no jurisdictional error identified – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, [48A], 424A, 438 |
| Applicant: | SZALG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2527 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 8 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr M. Cleary of Counsel |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 10 November 2016 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $6,000.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 26 June 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2527 of 2016
| SZALG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a male citizen of Nepal aged 48 years, having been born on 11 January 1971.
By Amended Application filed in this Court on 10 November 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 17 August 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 18 June 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant arrived in Australia on 2 July 2001 on a Business (Short Stay) (Class UC) (Subclass 456) visa. He applied for a Protection visa under the Refugees Convention criterion (first Protection visa application), which was refused on 13 November 2001 by a Delegate of the Minister. The Refugee Review…
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Details
- Case
- [2019] FCCA 1529
- Decision Date
CaseChat Overview and Summary
The applicant, SZALG, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) that affirmed the Minister for Immigration's refusal to grant him a Protection visa. SZALG contended that the AAT failed to adequately consider his claims relating to his homosexuality and political involvement in Nepal, alleging procedural unfairness. The matter came before Dowdy J of the Federal Court of Australia.
The central legal issue before the court was whether the AAT's decision involved jurisdictional error. Specifically, the court was required to determine if the AAT's assessment of SZALG's claims, particularly concerning his credibility and the consideration of his stated grounds for seeking protection, was so unreasonable, illogical, or irrational as to constitute a jurisdictional error. This involved examining whether the AAT had failed to duly consider the material before it or had reached conclusions that were not open on the evidence.
Dowdy J applied established principles regarding jurisdictional error in the context of administrative decision-making, particularly concerning adverse credibility findings. The court noted that while findings of credit are primarily for the decision-maker, they are not immune from scrutiny on judicial review. Jurisdictional error may arise if such findings are legally unreasonable, lack a logical or rational basis, or are based on a false factual premise. The court emphasised that a high degree of illogicality must be demonstrated, and mere disagreement with the Tribunal's reasoning is insufficient to establish jurisdictional error. After analysing the AAT's decision in light of these principles, Dowdy J found no jurisdictional error.
The application for judicial review was dismissed.
The central legal issue before the court was whether the AAT's decision involved jurisdictional error. Specifically, the court was required to determine if the AAT's assessment of SZALG's claims, particularly concerning his credibility and the consideration of his stated grounds for seeking protection, was so unreasonable, illogical, or irrational as to constitute a jurisdictional error. This involved examining whether the AAT had failed to duly consider the material before it or had reached conclusions that were not open on the evidence.
Dowdy J applied established principles regarding jurisdictional error in the context of administrative decision-making, particularly concerning adverse credibility findings. The court noted that while findings of credit are primarily for the decision-maker, they are not immune from scrutiny on judicial review. Jurisdictional error may arise if such findings are legally unreasonable, lack a logical or rational basis, or are based on a false factual premise. The court emphasised that a high degree of illogicality must be demonstrated, and mere disagreement with the Tribunal's reasoning is insufficient to establish jurisdictional error. After analysing the AAT's decision in light of these principles, Dowdy J found no jurisdictional error.
The application for judicial review was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
This Ground asserts in general terms that the decision of the Tribunal is unreasonable, illogical or irrational. The relevant principles have recently been summarised by the Full Court of the Federal Court of Australia in DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 at 649 – 650 [30] as follows:[30] Therelevant principles can be summarised as follows.(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]–[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; 154 ALD 221; [2016] FCAFC 174 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; 302 ALR 572; 136 ALD 41; [2013] FCA 317 (SZRKT) at [77] (Robertson J).(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; 115 ALD 248; [2010] HCA 16 (SZMDS) that:135. … 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.(Emphasis added)(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration & Border Protection (2015) 233 FCR 451; [2015] FCA 1089 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676; [2002] FCAFC 437 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113; 112 ALD 501; [2009] FCA 1470 at [37].(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that: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 …(citations omitted)(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]–[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “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” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be suffıcient to make out illogicality”: CQG15 at [61].
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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