SZSVC v Minister for Immigration & Border Protection - [2014] FCCA 917

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSVC v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR

[2014] FCCA 917

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s decision was one which no logical or rational decision maker could make – whether the Refugee Review Tribunal’s findings were open to it – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01, Sch. 1

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Minister for Immigration and Citizenship v Li (2013) HCA 18
SZRSS v Minister for Immigration and Citizenship [2014] FCA 137
SZOOR v Ministerfor Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1
Tisdall v Webber (2011) 193 FCR 260
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Applicant:

SZSVC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 968 of 2013

Judgment of:

Judge Emmett

Hearing date:

9 April 2014

Date of Last Submission:

9 April 2014

Delivered at:

Sydney

Delivered on:

7 May 2014

REPRESENTATION

Solicitors for the Applicant:

Mr Michael Jones
(Parish Patience Immigration Lawyers)

Counsel for the Respondents:

Ms Rachel Francois

Solicitors for the Respondents:

Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 968 of 2013

SZSVC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 22 April 2013 and handed down on the same date (“the RRT”).
The applicant claims to be a citizen of the India and of Sikh ethnicity. The applicant claims to fear harm from his father and from the Indian community in general who may subject him to violence as a result of his sexual orientation.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

The applicant arrived in Australia on 30 December 2007, having departed legally from India on a passport issued in his own name and a student visa.
On 26 August 2011, the applicant lodged an application for a protection (Class XA) visa with the (then) Department of Immigration and Citizenship (“the Department”).
On 16 November 2011, the Delegate refused the applicant’s application for a protection visa.
On 22 November 2011, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 22 April 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.
On 7 May 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Section 36(2A) of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

In support of his protection visa application, the applicant swore a statutory declaration which included the following claims:
a)The applicant first felt that he was different to other boys at about 14 years old.
b)He was attracted to a classmate and had gay sex for the first time at 15 years old.
c)In 2006, the applicant’s father said he would start to look for a girl for the applicant to marry over the applicant’s objections.
d)In late 2006, the applicant had another homosexual encounter.
e)In early 2007, the applicant’s parents discovered that he was a homosexual and told the applicant that he would be disowned and “put out on the street” if he did not stop immediately.
f)The applicant’s father then arranged a student visa for the applicant to go to Australia.
g)At the college in Australia attended by the applicant, his teacher gave him the addresses of gay venues on Oxford St.
h)In July 2010. The applicant commenced a brief homosexual relationship with a man in Sydney that he met at a gay venue.
i)The applicant had further homosexual encounters in Sydney in 2010.
j)In June 2011, on the Queen’s Birthday long weekend, the applicant met a man who he claims is his present partner, Mr Chris Richards. Initially, Mr Richards told the applicant that he would help him find a gay partner.
k)The applicant claims that he would be persecuted in India by his family, friends and society if he lived an openly homosexual life.

The Delegate’s decision

On 25 October 2011, the applicant attended an interview with the Delegate.
On 16 November 2011, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate accepted the importance of family in Indian culture, but was not satisfied that ostracism from some family members constituted serious harm. Nor was the Delegate satisfied that there was a real chance that the applicant faced harm amounting to serious harm from his parents and family should they attempt to force him into an arranged marriage.
The Delegate was satisfied that if the applicant returned to India, he would be able to relocate within India. The Delegate noted that while there were some reports of employers firing Lesbian, Gay, Bisexual and Transsexual (LGBT) persons who did not hide their sexual orientation, the applicant’s education would generally mitigate any employment difficulties that the applicant may encounter as a result of his sexuality, particularly in the larger cities of India.
The Delegate dealt with a claim by the applicant’s migration agent that the applicant faced harm from extremist groups, including Shiv Sena and Vishwa Hindu Parishad (“the VHP”). The Delegate accepted that extremists from both Shiv Sena and the VHP had been associated with acts of protest and violence in the past, but also noted that their targets were wide ranging and included journalists, Christians and Bollywood actors. The Delegate also noted that the Indian state had taken real steps to protect their citizens from attacks from these extremist groups and to punish the offenders.
Finally, the Delegate had regard to a considerable weight of country information which indicated a shift in the conservative values in India. The Delegate was not satisfied that the situation in India remains persecutory for homosexuals. Further, the Delegate was not satisfied that fear of forced marriage or the applicant being disowned by his family constituted Convention-related persecution.

The RRT’s review and decision

On 22 November 2011, the applicant lodged an application for review of the Delegate’s decision by the RRT.
The applicant provided further documents in support of his review application.
On 12 March 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 9 May 2012 to give oral evidence and present arguments.
On 9 May 2012, the applicant attended the RRT hearing and gave evidence as did his alleged homosexual partner, Mr Richards.
On 13 September 2012, the RRT wrote to the applicant inviting him to appear once again before the RRT on 8 November 2012. The applicant attended the hearing and produced further documents and his alleged homosexual partner, Mr Richards, gave further and more detailed evidence.
On 20 November 2012, the RRT wrote to the applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicant to comment upon it (“the s.424A Letter”).
On 2 January 2013, the applicant responded to the s.424A Letter, attaching a number of statutory declarations, including from Mr Richards.
The RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT also put to the applicant country information for comment. The RRT identified with particularity the country information to which it had regard.
The RRT had regard to the evidence of Mr Richards, with whom the applicant claimed to be in a homosexual relationship. The RRT found that Mr Richard’s evidence was contrived to achieve a migration outcome. The RRT found that Mr Richard’s evidence was neither credible nor reliable, noting that he had supported the applications of two asylum seekers in rapid succession, claiming that he had engaged in homosexual relations with both asylum seekers.
The RRT found that the applicant and Mr Richards were not in a homosexual relationship and rejected their evidence that they had ever been in such a relationship.
Having found that the applicant had knowingly provided false and misleading evidence to the RRT in support of his protection application, the RRT rejected the entirety of the applicant’s evidence in relation to his claimed sexual orientation. The RRT found that the applicant had knowingly given false and fabricated evidence to the RRT and that he would be prepared to do or say anything in order to achieve a migration outcome.
The RRT made an explicit finding that all evidence provided by the applicant to the RRT, both in writing and orally, including the supporting statutory declarations and oral testimony from other sources, had been contrived to achieve a migration outcome.
Accordingly, the RRT rejected the applicant’s claim to be a homosexual or that he had ever engaged in homosexual conduct or homosexual relationships. Having expressly rejected all evidence related to the applicant’s claims of being a homosexual, the RRT found that there was no real chance that he would face harm for this reason in India. The RRT accordingly refused the applicant’s claim for protection pursuant to s.36(2)(a) of the Act.
The RRT then considered whether the applicant met the requirements for complementary protection pursuant to s.36(2)(aa) of the Act. The RRT repeated its findings as to the applicant’s credibility and on that basis found that the applicant was not a person who was owed protection obligations under s.36(2)(aa) of the Act.
Accordingly, the RRT affirmed the decision not to grant a protection visa.

The proceeding before this Court

The applicant was represented before this Court by Mr Michael Jones, solicitor.
Mr Jones confirmed that the applicant relied on the grounds contained in the application filed on 7 May 2013, as follows:
“1. The Tribunal’s decision in respect of the Applicant’s sexual orientation was one at which no logical or rational decision maker could have arrived on the same evidence.
Particulars
The Tribunal’s finding concerning the Applicant’s credibility was entirely based on his impressions of the evidence given by a single witness. Those impressions however had nothing to do with the sexual orientation of either the witness or the Applicant but rather the witness’s romantic stability. It was not logically open on the basis of this evidence alone to conclude that the Applicant was not homosexual.
2. The Tribunal’s decision was affected by a reasonable apprehension of bias.
Particulars
The conclusion that the Tribunal drew concerning the evidence on one witness led it closing its mind to, and refusing to hear from, other evidence corroborative of the applicant’s claim.”
In support, Mr Jones read the affidavit of Sue Archer, affirmed 6 June 2013, annexing a transcript of the RRT hearings on 9 May 2012 and 8 November 2012.
At the heart of the applicant’s complaint is a contention that the RRT’s findings that the applicant was not a homosexual and had not had a homosexual relationship with his witness, Mr Richards, were not open to the RRT on the evidence and material before it; and, were not findings that any logical or rational decision maker could have made on the evidence before the RRT.
In particular, Mr Jones referred to the following findings by the RRT:
“61. The Tribunal considered the explanations of the applicant and the evidence by Mr Richards and the statutory declarations provided in response to the s.424A invitation. It finds that Mr Richards evidence, holding himself out to be a starry-eyed individual smitten with his previous lover, whom he told the Tribunal he was prepared to sponsor to Australia, only to end the relationship with Applicant X because of his attitude towards Mr Richards’ dogs and cats, and the claimed wedge in the relationship which resulted, stretches credulity to such an extent that his evidence whether given under oath or sworn in Statutory Declarations to both Tribunals has been contrived to achieve migration outcomes.” (emphasis added)
The RRT’s findings arose from evidence given by Mr Richards at the first hearing, where his evidence was relatively short and was essentially that he had known the applicant for about twelve months, had been in a homosexual relationship with the applicant for between nine and eleven months, and that it was a monogamous relationship.
The second RRT hearing explored in depth with Mr Richards the evidence given by him both orally and in his statutory declaration. Mr Richards confirmed that he met the applicant in about May 2011 and began a relationship with him in August 2011. The RRT explored with Mr Richards the content of his statutory declaration, sworn on 3 May 2011, and which he had provided in support of Applicant X’s application for protection. The RRT put its concerns to Mr Richards about the information in his statutory declaration in Applicant X’s case and his evidence provided to the RRT in support of the applicant in the case now before this Court. Mr Richards was given every opportunity to answer those concerns.
A fair reading of the transcript provides an evidentiary foundation for the adverse findings made by the RRT in respect of Mr Richards’ evidence.
Subsequent to that hearing pm 20 November 2012, the RRT sent the applicant the s.424A Letter, giving the applicant information that the RRT was of the view may be the reason or part of the reason for affirming the decision under review.
The s.424A Letter recited particulars of a statutory declaration, dated 3 May 2011, provided by Mr Richards in support of another applicant the subject of a different protection visa application. The RRT stated that in Mr Richards’ statutory declaration, he indicated that he was in a sexually active homosexual relationship with “Ricky” (“Applicant X”), whom he had met on about 2 April 2011. Mr Richards stated that he and Applicant X were not living together, but saw each other several times a week, the relationship was working well and he was considering sponsoring an application for a partner visa for Applicant X because his intentions were for a long term relationship with Applicant X.
The s.424A Letter stated that within a month after swearing that statutory declaration about his relationship with Applicant X and giving evidence before a different Refugee Review Tribunal in support of Applicant X, Mr Richards made a statutory declaration in support of the applicant in the case before this Court. In that statutory declaration, Mr Richards declared that he had met the applicant over the Queen’s Birthday weekend in June 2011 and commenced a sexual relationship with him at that time. Mr Richards declared that by August 2011, the relationship with the applicant had become monogamous. Mr Richards declared in both his statutory declarations in support of Applicant X and in his statutory declaration in support of the applicant that he had intended that particular relationship to be long term.

The s.424A Letter informed the applicant that this information may lead the RRT to conclude that Mr Richards’ evidence to both Refugee Review Tribunals was contrived in order to achieve migration outcomes and could lead the RRT to find that Mr Richards has in the past given false testimony. The s.424A Letter stated that such a finding may seriously undermine Mr Richards’ credibility, given that he had supported the applications of two separate asylum seekers in rapid succession, based upon the claims of having separate homosexual relationships with each of those asylum seekers.
The s.424A Letter went on to state that it may find that Mr Richards’ evidence is not credible or reliable and that, without knowing his motivation for doing so, he would say and swear to anything before a Refugee Review Tribunal in order to assist individuals making protection visa applications in Australia.
The s.424A Letter stated that such a finding could lead the RRT to conclude that the applicant knowingly provided false and misleading evidence in support of his protection visa application. Such a conclusion would undermine both the oral and written evidence provided by the applicant. Such findings and conclusions may lead the RRT to affirm the decision under review.
The s.424A Letter invited the applicant to comment or respond by 4 December 2012.
Following an extension of time granted to the applicant, the applicant’s migration agent wrote to the RRT by letter dated 2 January 2013, enclosing a second statutory declaration by Mr Richards, affirmed 27 December 2012. In that statutory declaration, Mr Richards provided details on the history of his relationship with Applicant X; the reason for ending the relationship with Applicant X; and the timing in relation to commencing his relationship with the applicant. The migration agent’s letter also enclosed two further statutory declarations by witnesses, one declaring that the deponent was aware that the applicant has been in a homosexual relationship with Mr Richards since mid-2011; and, a second who declared that he believed from his observation of the applicant’s relationship with Mr Richards, that the applicant is a homosexual male.
The RRT’s finding that the reasons given by Mr Richards for ending his relationship with Applicant X “stretches credulity” was based on the following adverse findings made by the RRT in respect of Mr Richards’ evidence. Those findings are as follows:
“The Tribunal finds Mr Richards’ testimony at the first hearing to have been highly evasive and hesitant in relation to his claimed relationship with the applicant, leaving a clear impression that he was mindful of the testimony he had provided to the Tribunal previously in relation to Applicant X [Ricky], and was wary of contradicting his testimony at the hearing should it come to light that he was virtually simultaneously in two relationships with two protection visa applicants basing their claims on their sexual orientation. The Tribunal finds Mr Richards’ evidence to be false and that he has been untruthful in providing sworn testimony to the Tribunal on multiple occasions. The Tribunal finds that Mr Richards has in the past given false testimony to the Tribunal and that his evidence in this case is also not credible. Mr Richards has supported the applications of two asylum seekers in rapid succession based on claims of having gay sexual relationships with those asylum seekers. The Tribunal finds that Mr Richards’ evidence is not credible or reliable. Without knowing his motivation for his provision of false evidence to the Tribunal, it finds that Mr Richards would say and/or swear to anything before the Tribunal in order to assist individuals making protection visa applications in Australia. It further finds that Mr Richards is not in a homosexual relationship with the applicant, and it rejects Mr Richards and the applicant’s evidence that they are or have been in a homosexual relationship. The Tribunal notes the central element of the applicant’s claim in his claimed gay sexual orientation and that to make out his claim to be homosexual, he maintained that he has and he continues to be in a relationship with Mr Richards. The Tribunal does not accept as credible the applicant’s claim to be in a homosexual relationship with Mr Richards.” (emphasis added)
Having made those adverse findings in respect of Mr Richards’ evidence, and having found that the applicant’s complicity in providing evidence of Mr Richards in support of his application to the RRT so profoundly damaged the applicant’s credibility, the RRT found the totality of the applicant’s evidence not to be reliable or trustworthy and comprehensively rejected the applicant’s claims in their entirety.
The RRT finding that the applicant knowingly provided false and fabricated evidence to the RRT led it to find that the evidence adduced by the applicant, either oral or written and including his statutory declarations and testimony from all sources, had been contrived to achieve a migration outcome and was not reliable, trustworthy or credible.
The RRT found that the applicant would say, write or do anything in order to pursue an immigration outcome in his favour. The RRT found that such conduct is of such seriousness that it could not give any weight to any evidence tendered by the applicant in any form. This included statutory declarations provided by him in support of his claims. The RRT rejected the applicant’s evidence “in its totality.”
Accordingly, the RRT comprehensively rejected the applicant’s claims of homosexual conduct in India, any threat of harm in India for that reason from any source, and concluded that there was not a real chance that the applicant would be perceived as a homosexual in India for that reason.
In light of the RRT’s comprehensive adverse credibility findings in respect of the applicant, the RRT was entitled to place no weight on any evidence provided by the applicant in support of his protection visa application. The statements below in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] and [49] per McHugh and Gummow JJ similarly apply in this case. Those statements are:
“In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
…
[49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration.” (emphasis added)
The RRT’s finding that Mr Richards’ evidence “stretches credulity” does not display such unreasonableness and illogicality as to take it outside the “area of decisional freedom” referred by French CJ in Minister for Immigration and Citizenship v Li (2013) HCA 18 at [28] (“Li”). In any event, I accept the submission of counsel for the first respondent, Ms Francois, that the High Court’s analysis of “unreasonableness” in Li was confined to the context of procedural discretion and has no application in administrative fact finding (see SZRSS v Minister for Immigration and Citizenship [2014] FCA 137 at [47] per Farrell J; SZOOR v Ministerfor Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [83] per McKerracher J (“SZOOR”)).
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 22 (“SZMDS”), Gummow ACJ and Keifel J held that there was no illogicality by a Tribunal in making a critical inference, although warned that a Court should not “lightly” come to such conclusions (see [23-24] and [40-42]). Crennan and Bell JJ found no illogicality in the Refugee Review Tribunal’s decision, the subject of consideration by the High Court in SZMDS, and appeared to hold that the test was akin to Wednesbury unreasonabless (see SZDMS at [130]; Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1). Heydon J expressed no view on the question of principle and simply held that the Tribunal’s reasoning was not illogical (see [75], [77], [84], [86]). While SZMDS may not have revealed a clear ratio decidendi, subsequent authorities suggest that the judgment of Crennan and Bell JJ appears to reflect the existing state of the law, where their Honours stated at [135] as follows:
“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 maker 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 a 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.”
That formulation has been applied by the Full Court of the Federal Court of Australia in various authorities including Tisdall v Webber (2011) 193 FCR 260; SZOOR; and Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.
Applying the approach of Crennan and Bell JJ to the question of illogicality and irrationality, the evidence and material before the RRT in the case before this Court, when taken as a whole, was sufficient to support the findings and conclusions made by the RRT. The evidence and material before the RRT did not deliver of only one conclusion.
Accordingly, ground 1 of the application is not made out.
Ground 2 was not pressed by Mr Jones and it was not suggested that it was possible for the applicant to succeed on ground 2 in circumstances where he did not succeed on ground 1. For that reason, ground 2 is also not made out.

Conclusion

A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant and his substantive witness, Mr Richards at two hearings; and, had regard to all material provided in support, including other statutory declarations provided by the applicant. The RRT put to the applicant and to Mr Richards matters of concern it had about their evidence at two hearings, as well as in writing in the s.424A Letter and noted the various responses. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.
The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 7 May 2014