SZVUY v Minister for Immigration

[2017] FCCA 1982

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVUY v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1982

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal took into account irrelevant considerations – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 425, 476

Applicant: SZVUY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3436 of 2014

Judgment of: Judge Nicholls

Hearing date: 19 July 2017

Date of Last Submission: 19 July 2017

Delivered at: Sydney

Delivered on: 19 July 2017

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Mr A Keevers of Sparke Helmore

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 11 December 2014 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3436 of 2014

SZVUY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 11 December 2014, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 14 November 2014 which affirmed a decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant.

2. The evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

Background

1. The applicant is a citizen of Bangladesh (CB 14). He arrived in Australia as an “unauthorised maritime arrival” on 26 July 2012 (CB 15 and CB 100). The applicant applied for a protection visa which was received by the Minister’s department on 19 December 2012 (CB 1 to CB 86).

2. The applicant was invited to, and attended, an interview with the delegate on 31 May 2013 (CB 91 to CB 93 and CB 103.6). The delegate refused the application for the visa on 18 October 2013 (CB 94 to CB 117).

3. The applicant applied for review to the Tribunal on 4 November 2013 (CB 118 to CB 125). He was represented by a registered migration agent. By letter dated 22 September 2014 and faxed to his representative authorised for that purpose, the applicant was invited to, and subsequently attended, a hearing before the Tribunal on 30 October 2014 (CB 132 to CB 136 and CB 154 to CB 159). By letter of the same date, and also faxed to his representative, the applicant was invited to “comment on or respond to information” that the Tribunal said would be the reason or a part of the reason for affirming the delegate’s decision (CB 137 to CB 140).

4. The applicant sought an extension of the time from the Tribunal within which to make his comments and give his response.  The Tribunal granted this extra time and the applicant responded on 23 October 2014 (CB 137 to CB 153). The applicant sent post-hearing submissions to the Tribunal through his representative on 4 November 2014 (CB 160 to CB 168).

5. The Tribunal affirmed the delegate’s decision on 14 November 2014, and the applicant was notified of the Tribunal’s decision by letter sent by email to his authorised representative on 17 November 2014 (CB 169 to CB 180).

6. Before the Tribunal, the applicant claimed to fear harm because he said he was a supporter of the Bangladesh National Party (“BNP”). He claimed to fear harm from opponents of that party, namely, the Awami League (“AL”) ([11] at CB 174).  The applicant claimed that at the age of 18 he had fallen in love with his cousin, and asked his uncle if he could marry her. His uncle refused because the applicant was “poor” ([24] at CB 178). As a result, the applicant claimed to have become “depressed”, and a few of his friends had then “encouraged him” to become involved in politics ([14] at CB 174). As a consequence, the applicant claimed to have become a member of the BNP. The applicant claimed to have attended BNP meetings, protest actions and would also “approach” people to get votes for the BNP ([14] at CB 174 to CB 175).

7. The applicant also claimed that two years later a “friend” of his was abducted and killed by supporters of the AL ([11] at CB 174). Shortly after, the applicant claimed that while having tea with a friend, a group of AL supporters threatened to kill them and they ran away and took shelter in his cousin’s house. The AL supporters then came to his family home, looking for him, and the applicant’s father indicated to him that he should go away as it was not “safe [for him] to stay” (CB 29). The applicant claimed his friend fled to India but that he remained in Bangladesh. However, he moved to another area of Bangladesh, away from his home area, and started a business selling sheets (CB 29). 

8. He claimed, however, that the AL continued to look for him and that they had come to his new home “three days in a row”. The applicant claimed that he told his father that the AL continued to pursue him and that his father arranged for the applicant’s travel to Malaysia.  Five years later, the applicant boarded a boat for Indonesia, and then boarded another boat which brought him to Australia (CB 30). 

9. The Tribunal did not consider the basis of the applicant’s claims to be “convincing” and further found that the applicant “[had] not been truthful in his claims” ([13] - [14] at CB 174).  The Tribunal noted that the applicant did not claim to have joined the BNP as a result of any strong political conviction, but simply because he was “depressed” and his friends had encouraged him to join ([14] at CB 174 to CB 175).

10. Even taking into account the applicant’s claimed illiteracy and lack of education, the Tribunal found that the applicant had “minimal knowledge” about the BNP.  The Tribunal found that this suggested a lack of involvement with the BNP.  The Tribunal considered the applicant’s social, as opposed to any claimed political motivations for joining the BNP, and was not satisfied he would be of any adverse interest to any opposing political party.  The Tribunal found that the applicant would not be targeted by any opposing political party for his political beliefs, whether actual or imputed ([14] at CB 174 to CB 175). 

11. The Tribunal also had “significant concerns”, with particular aspects of the applicant’s claims and, as a result, also had concerns about the applicant’s credibility (see [15](a) - (e) at CB 175 to CB 176 and [17](a) - (d) at CB 176 to CB 177).

12. The Tribunal found that the applicant had minimal involvement with the BNP and did not accept that he “was ever perceived by anybody as being a BNP activist or even a supporter” ([20] at CB 177). The Tribunal also did not accept that the applicant was attacked by AL supporters as he had claimed,  that AL supporters asked about his whereabouts, that they had made any attempt to attack the applicant or that other events that the applicant had described took place ([20] at CB 177).

13. The Tribunal also did not accept the applicant’s claims to fear harm from his uncle, who was an AL supporter, as a result of the applicant’s relationship with his cousin ([23] at CB 178 to [28] at CB 179 and [30] at CB 179).

14. The Tribunal found that the applicant had “exaggerated his claims concerning his political involvement”, and due to his low level involvement with the BNP, he would not be “of any adverse interest to anybody because of his political views (actual or perceived)”. The Tribunal found this included his family, his uncle, and the AL supporters in his home area. Although the Tribunal was prepared to accept that the applicant may have known a person who was abducted and killed, the Tribunal found that this had no connection to the applicant ([29] at CB 179).

15. Having considered the applicant’s claims singularly and cumulatively, it found that there was “no real chance that the applicant would be persecuted for reason of his political opinion (actual or perceived)” or “any other reason or combination of reasons” ([31] at CB 179). The Tribunal also found that the applicant did not satisfy the criterion for protection as set out in section 36(2)(aa) of the Act ([31] at CB 179 to [37] at CB 180).

The Application to the Court

1. The grounds of the application to the Court are not numbered, but there appear to be five grounds with some particulars. They are in the following terms (the grounds have been numbered for convenience):

   “[1] In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

   Particulars:

   RRT unreasonably raised doubt over the applicant’s political activities and the membership of BNP.

   The applicant claims to fear serious harm in Bangladesh on the Conventional grounds of his actual or imputed political opinion in favour of the Bangladesh Nationalist Party and against the Awami League

   The Tribunal raised several irrelevant issues to discredit the facts that he was a active member of the BNP party.

   [2] The Applicant claims that the Tribunal made a jurisdictional error when intentionally asked several irrelevant questions to undermine his political activities and his role in the BNP

   Particulars:

   The Tribunal failed to identify accurately the particular Social group namely a member of BNP.

   The applicant submitted that the applicant fears persecution because of having the membership of a particular social group. The applicant can be considered a member of a particular social group, namely a member of the BNP.

   [3] The applicant claims that the Tribunal’s finding of reasons is Confused and the test for persecution was not applied according to the Rules of the Migration Act.

   Particulars

   The applicant claims that the test of fear of persecution applies whether the victim has a low profile or high profile. It is fact that high profile leaders are targeted easily but it does not mean that low profile activists are not killed in any attacks. In reality the low profile political activists are killed first before the big political leaders in the name of security.

   [4] The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958 The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

   Particulars:

   The RRT ignored the relevant consideration related with complementary Protection set out in s 36(2)(aa).

   The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds of recognized in the Refugee Convention.

   Applicant claims that his fear of harm or mistreatment is for the Convention reasons of political opinion and membership of the particular social group.

   Applicant’s fear of harm is well-founded and that there is a real chance that he will suffer persecution if he returned to Bangladesh.”

   [Errors in original.]

2. The applicant has also filed two sets of written submissions in these proceedings.  The first on 2 November 2015 (“the first written submissions”) and the second on 12 July 2017 (“the second written submissions”). It appears that the submissions seek to raise yet further complaints about the Tribunal decision, which are dealt with below.

3. Before the Court, the applicant appeared in person.  He was assisted by an interpreter in the Bengali, or Bangla, language.  When given the opportunity to address the Court to make oral submissions, the applicant said that he had nothing to say.  I understood, therefore, that the applicant sought to rely on the grounds of the application as stated, and what was written in the two sets of written submissions he had filed with the Court. 

4. It is quite clear that both sets of written submissions suffer from a number of deficiencies.  For the most part, they seek to challenge factual findings made by the Tribunal, and the conclusions of the Tribunal. Therefore the submissions, in effect, seek impermissible merits review from this Court. 

5. But the submissions also, in part, appear to bear no relationship to Australian law, or indeed to the circumstances of the applicant’s case before the Tribunal.  For example, in one part of the second written submissions, the claim is made that the “correctness of the approach taken by the Tribunal to irrationality does not appear to have been agitated before the Federal Circuit Court”. 

6. Given that at the time of drafting the written submissions, the matter was still before the Federal Circuit Court, and, indeed, the matter is still before the Federal Circuit Court, the assertion that irrationality was not agitated before this Court is meaningless.  It also ignores what the applicant otherwise raised in his first written submissions.  For this reason, I specifically asked the applicant whether he was able to assist the Court in explaining what was set out in the second written submissions. 

7. He initially said that the submissions had been drafted by “someone else”, but in his presence, and with his assistance.  He said that the submissions had been explained to him by whoever drafted them, but when asked to explain the specific part of the submissions, he said he was unable to do so because he had memory difficulties. 

8. To assist the applicant in refreshing his memory, I asked the interpreter to translate a specific part of those submissions for the applicant.  It became clear, and the applicant ultimately conceded, that he had little, or no understanding, of what was in the written submissions.  I will return to those submissions later.

9. Turning, first, to the grounds of the application before the Court. Ground one asserts that the Tribunal fell into jurisdictional error because “it failed to take into account relevant considerations”.  The particulars to the ground are not helpful in explaining the ground as pleaded.  At best, the relevant consideration that the Tribunal is said not to have taken into account, was the applicant’s claim to fear harm because he was a BNP member.

10. It is the case that a failure to take into account a relevant consideration may, indeed, in certain circumstances, lead to the revelation of jurisdictional error.  But as is made clear by a number of relevant authorities, such a failure must be one that the Tribunal is bound by law to take into account (Minister for Aboriginal Affairs v Peko - Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323).

11. There is nothing in the applicant’s particulars or, indeed, in his written submissions, to identify any matter that the Tribunal was statutorily bound to take into account.  The applicant’s ground, in the circumstances, is no more than an expression of disagreement with the Tribunal’s reasoning and its finding that he was not telling the truth about his claimed level of BNP involvement.  The Tribunal’s findings in this regard were reasonably open to it on the relevant evidence before it. In short, the applicant’s ground one seeks impermissible merits review. No legal error is revealed in ground one.

12. For the sake of completeness, the Minister’s written submissions note that if the ground is meant to be some challenge by the applicant to the Tribunal’s concerns regarding the inconsistencies or implausibility in his evidence, then I agree with the Minister that it was appropriate for the Tribunal to test the applicant’s credibility in the manner that it did (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [30] (“Ex parte H”) and Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547). No legal error is revealed in that light either.

13. Ground two complains that the Tribunal “raised several irrelevant issues to discredit” the applicant’s claim that he was an “active member of the BNP”.  The particulars further assert that the Tribunal failed to “accurately” identify the particular social group of which the applicant said he was a member, namely, a member of the BNP. 

14. In relation to the ground as stated, it is the case that it was open to the Tribunal to test the applicant’s claims and the credibility of those claims.  The Tribunal’s conclusion and the antecedent findings that informed it were reasonably open to it on what was before it.

15. Further, there is nothing before the Court to show where, or how, the Tribunal “intentionally asked”, what the applicant says, were “several irrelevant questions to undermine” his claims of “political activities and his role in the BNP”.  There is no obligation on the Tribunal to uncritically accept anything, or indeed, everything, that an applicant says to it (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs[1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265).  In the proper conduct of the review, the Tribunal’s task is to assess the evidence put before it and to make findings probative of that evidence, and form any reasonable inferences that may be drawn from that evidence. 

16. As the Minister correctly submits, there is nothing on the face of the Tribunal’s decision record that would suggest that the Tribunal’s approach to considering and assessing the evidence before it and forming a view as to the credibility of those claims, reveals any indication of legal error in that regard.

17. The applicant’s particular asserts that the Tribunal did not consider the applicant’s membership of a particular social group.  That is, a member of the BNP. The difficulty for the applicant now is that the particulars, and his submissions, do not identify where he actually claimed to fear harm on the basis of being a member of a particular social group. 

18. As the Minister submits, the applicant’s claims to fear harm were based on what he said was his political opinion, and the harm that he said he had suffered in the past and would likely suffer in the future, as it arose from his claimed political activities.  What the applicant’s ground fails to understand is that the Tribunal rejected the factual basis of the applicant’s claims in this regard. 

19. As the Minister also submits, once the Tribunal made that factual finding and gave reasons for it that were reasonably open to it, the Tribunal was not required, in those circumstances, to then go on and consider whether membership of the BNP was a social group for the purposes of the Refugees Convention, as it is understood in light of the Act. Therefore no jurisdictional error is revealed in ground two.

20. For the remainder of the grounds, the assertion appears to be that the Tribunal misapplied the test under the relevant criteria for the grant of the protection visa, namely ss.36(2)(a) and 36(2)(aa) of the Act. The particulars, in my view, merely seek to emphasise the applicant’s (or whoever drafted the grounds for him) misunderstanding of what is available to him as a proper articulation of jurisdictional error on the part of the Tribunal.

21. The particulars merely restate some of the applicant’s claims before the Tribunal and, in effect, assert that the Tribunal’s error was that it did not find that his circumstances fell within either of the criteria for the grant of the protection visa.  No jurisdictional error is revealed by any of the grounds in the application to the Court. 

22. For a large part, the applicant’s first written submissions to the Court merely restate his claims to fear harm.  The applicant, or whoever drafted the written submissions for him, plainly seeks to express a grievance with what the Tribunal did in its decision-making. But merely restating claims to protection, and asserting a grievance that the Tribunal did not find favourably for the applicant, is no more than seeking impermissible merits review from the Court.  However, to the extent that some of the wording may indicate some assertion of legal error, I note the following.

1. First, the submissions assert that, somehow, the Tribunal breached its procedural fairness obligations to the applicant, under the Act. However, the applicant’s submissions seek to explain this by saying that the Tribunal did so by not relying on country information, and that it made the decision in his case, as the applicant says, on the basis of its “imagination”.

2. In relation to the Act, the applicant was invited to a hearing pursuant to s.425 of the Act. That invitation, on the evidence before the Court, complied with all the relevant statutory and regulatory requirements. Further, on the evidence that is before the Court, the hearing was a meaningful opportunity for the applicant to give his evidence and make his arguments in relation to the issues dispositive of the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494).

3. In this light I note that, despite opportunity to do so, the applicant has not provided any evidence, for example, by way of transcript, of what may have occurred at the Tribunal hearing.  Therefore, the only evidence that is available to the Court in relation to the hearing, are the Tribunal’s references in its decision record.  There is nothing in those references to show that the Tribunal breached its statutory obligation to provide a meaningful opportunity to the applicant to give his evidence and make his arguments. 

4. In relation to s.424A of the Act, which is also relevantly a part of the Act that applies to matters of this type, I note that the Tribunal actually did write to the applicant pursuant to s.424A of the Act (CB 139 to CB 140). It also complied with all the relevant statutory requirements for the giving of such a letter to an applicant. As the Minister submits, to the extent that the information to which the Tribunal referred was required to be put in writing to the applicant, the Tribunal complied with this requirement. The applicant responded with the assistance of his representative. The representative also made further submissions after the hearing.

5. To the extent that the written submissions make reference to s.424A(3)(a) of the Act, the country information on which the Tribunal can be said to have relied, did fall within the exception set out at s.424A(3)(a) of the Act from the obligation in s.424A(1) of the Act

6. What the applicant’s first written submissions at page 3, item number 1, seek to argue is, with respect, difficult to understand. But I simply say that in relation to s.424A of the Act, no breach by the Tribunal of its obligations is evident, or even indicated on the evidence before the Court.

7. Second, the applicant’s written submissions also appear to seek to complain that the Tribunal did not consider country information that was beneficial, or advantageous, to the applicant’s case. That is, it only considered information that, in a sense, was “against” him. 

8. The Minister, again correctly, submits that it is now well settled that generally, the country information to which the Tribunal has regard and its assignment of weight to that information, is a matter for the Tribunal within the proper exercise of its jurisdiction (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

9. The applicant’s submissions make reference (although it is not clear) to the Tribunal’s approach to evaluating the evidence before it. For example, that the Tribunal “contorted” the “whole proceeding” before it.  If this is some attempt, through the submissions, to assert either bias or the apprehension of bias on the part of the Tribunal, then it does not succeed. 

10. This is because bias, given the serious nature of any such allegation, must be, distinctly made and must be capable of being clearly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] (“Jia Legeng”) and SZRUI v Minister for Immigration, Multicultural and Indigenous Affairs and Citizenship [2013] FCAFC 80 at [22]). The applicant’s submissions do not contain any distinct assertion of bias, and on the material, actual bias, having regard to the relevant test, cannot be made out.

11. It cannot be said on the evidence before the Court, that the Tribunal did not bring an open mind to the proceedings.  The test for the apprehension of bias is that the well-informed lay observer might reasonably apprehend that the Tribunal might not have brought such an open mind to the proceedings (Ex parte H, MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100, Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 328, (2004) 214 ALR 264).

12. Third, the first submissions also assert that the Tribunal did not take into account the “full gravity” of the applicant’s circumstances.  If this is some attempt to say that the Tribunal did not consider some integers, or aspects, of the applicant’s claims, then it does not succeed.  There is nothing in the evidence before the Court to show that the Tribunal did not consider all of the claims expressly made or clearly arising in the circumstances presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1 at [58] and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).

13. It must be said, as best as that part of the submissions can be understood, it appears to be a disagreement with the Tribunal’s finding that the applicant had exaggerated his level of his involvement with the BNP.  Again, this is yet another challenge to a factual finding made by the Tribunal that was reasonably open to it on what was before it, and for which the Tribunal gave cogent reasons. 

14. Fourth, the Minister’s submissions have also focused on the claim, or the statement, made in the first written submissions by the applicant, that the decision by the Tribunal is “not justif[ied]” by the evidence referred to in the decision.  The Minister submits that, to some extent, that may be understood as some argument on the part of the applicant that the Tribunal’s decision was affected by illogicality or irrationality or was otherwise legally unreasonable. 

15. There are a number of appellate Court authorities that provide direction to this Court in matters where such claims of illogicality, irrationality or unreasonableness are raised.  For current purposes, I agree with the Minister that, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”) provides the relevant direction to this Court. In particular, that which was set out in SZMDS at [130] by Crennan, Bell, and Heydon JJ. The applicant’s contention, in his submissions, cannot be made out.

16. On the evidence before the Court, the Tribunal’s findings were reasonably open to it on what was before it, and they were probative of the material that was before it.  Legal unreasonableness is not shown, or made out, in circumstances where, as is said, minds may differ as to the outcome of the review.  On the evidence before the Court, it cannot be said that the Tribunal’s decision was so unreasonable that no reasonable decision-maker could have reached the same conclusion. 

17. Fifth, the applicant’s first written submissions also make various references to such things as an “improper exercise of power”, the Tribunal identified a “wrong issue”, the Tribunal “rel[ied] on irrelevant material” and, indeed, all the different kinds of jurisdictional error that the applicant’s submissions say were set out by the High Court in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163.

18. However, in the circumstances, these references can only properly be understood as reflections of the applicant’s grievance with the Tribunal’s findings. In particular, its findings that the applicant had not been truthful in some of his claims, and that the applicant had exaggerated other parts of his claims.  No jurisdictional error is revealed in this regard. 

19. The applicant’s second written submissions again adopt a similar approach to the first written submissions.  That is, they appear to be drafted in an abstract sense without any real attempt to link the submissions to the evidence that is actually before the Court and, in particular, to the Tribunal’s decision record.  They also contain unexplained assertions or unsatisfactorily explained contentions.  It must be said that it is difficult to discern their relevance to the circumstances presented by the evidence before the Court in this case. 

20. Nonetheless, at best, two matters emerge from the second written submissions. The first is that, as mentioned earlier, I asked the applicant to explain the contention that “irrationality” in the Tribunal’s decision had “not appear[ed] to have been agitated before” this Court.  He was unable to assist. To the extent that the submissions seek to raise some claim of irrationality, illogicality or unreasonableness in the Tribunal’s decision record, I have already dealt with that above. In any event, there is nothing in the applicant’s second written submissions that would cause me to alter the conclusions that I have reached in this regard. 

21. One part of the second written submissions illustrates the problem for the applicant. The submissions say the Tribunal was “relevantly unreasonable” because:

    “…I leave my country of origin by boat as an illegal maritime arrival only because of save my life.  In the recent independent media report shows that under the present ruling government, every year more than two thousand political activist kill by illegal so called crossfire.”

    [Errors in original.]

22. The assertion there is that the Tribunal was unreasonable in its decision because the applicant left his country of origin because he feared that he would be killed like other political activists.  That paragraph is illustrative of the approach of the submissions, which is to characterise the applicant’s disagreement with the Tribunal’s decision as the Tribunal decision being unreasonable.  In the circumstances, it was not unreasonable, or, for that matter, illogical or irrational, of the Tribunal to make the decision that it did.  In the circumstances, the Tribunal gave cogent reasons for the series of antecedent findings that informed its conclusion.

23. That is, it found the applicant was not truthful in some respects, had exaggerated his claims in other respects, and what was left of the applicant’s claims, the Tribunal found, were not such as to bring him within the scope of what is contemplated by either of the criteria for the grant of the protection visa.  There is no legal error, as asserted by the applicant’s second written submissions, in relation to unreasonableness, illogicality or irrationality. 

24. The second matter that arises from the second written submissions is the assertion that the Tribunal should have adopted the “sliding scale of irrationality” which the submissions say renders irrationality “easier to establish in a case such as the present where human rights or humanitarian protection are at stake”. 

25. The submissions, although it must be said not clearly, nonetheless make reference to a case Town Planning Board v Society for the Protection of the Harbour Ltd [2004] 1 HKLRD 396, which appears to be a judgment of a Court in Hong Kong. As the Minister submitted today, that very same issue was raised recently before another judge of this Court in BCN16 v Minister for Immigration and Border Protection [2017] FCCA 1504 (“BCN16”). In BCN16 at [22] and [23], an argument that appears coincidentally to have been raised in written submissions in that case, has also been raised in this case.

26. In BCN16 at [24], his Honour, Judge Manousaridis relevantly said as follows:

    “This ground is not arguable.  The circumstances in which a Tribunal will be held to have made a jurisdictional error because of irrationality is governed by the judgments in Minister for Immigration and Citizenship v SZMDS & Anor.  In that case Crennan and Bell JJ said that in the context of a decision made by the Tribunal, ‘‘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’.”

27. I respectfully agree with what his Honour has said in BCN16 at [24] of that judgment. That is, that in matters where irrationality or illogicality is purportedly raised in relation to a Tribunal decision, this Court is directed by what is set out in relevant High Court authority and cannot be guided, let alone directed, by authority from another country, which is in contradiction Australian High Court authority. As I have repeatedly said, it was reasonably open to the Tribunal to make the decision that it did for the reasons that it gave.

28. In all, none of the applicant’s grounds of the application are made out. To the extent that the applicant’s written submissions seek to raise additional assertions of legal error, they are also not made out.  The application before the Court therefore should be dismissed. I will make that order.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  18 August 2017