WZAPP v Minister for Immigration
[2013] FCCA 270
•17 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAPP v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 270 |
| Catchwords: MIGRATION – Judicial review – independent merits review – whether irrelevant considerations taken into account – whether failure to take into account relevant considerations – whether procedural fairness denied – whether decision irrational or illogical. |
| Legislation: Criminal Procedure Act 2004 (WA), ss.119(3), 120(2) Migration Act 1958 (Cth), ss.5(1), 36(2), 46A, 91R, 195A, 425, 476, 477 |
| Cases cited: Minister for Immigration & Citizenship v SZNSP & Anor (2010) 115 ALD 294; [2010] FCAFC 50 Minister for Immigration & Citizenship v SZOCT & Anor (2010) 189 FCR 577; [2010] FCAFC 159 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Minister for Immigration & Multicultural Affairs v Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30 SZQGC v Minister for Immigration & Citizenship & Anor (2012) 128 ALD 338; [2012] FCA 598 Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 WZAPC v Minister for Immigration & Anor [2012] FMCA 381 |
| Applicant: | WZAPP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | ROSA GAGLIARDI IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 285 of 2011 |
| Judgment of: | Judge Lucev |
| Hearing date: | 14 September 2012 |
| Date of Last Submission: | 14 September 2012 |
| Delivered at: | Perth |
| Delivered on: | 17 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Hammond |
| Solicitors for the Applicant: | CASE for Refugees |
| Counsel for the Respondents: | Mr P Hannan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 285 of 2011
| WZAPP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| ROSA GAGLIARDI IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application under s.476 of the Migration Act 1958 (Cth)[1] for a declaration and injunction in relation to a decision[2] of an independent merits reviewer,[3] finding that the applicant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act, and recommending that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[4]
[1] “Migration Act”.
[2] “IMR Recommendation”. The IMR Recommendation is at Court Book (“CB”) 124-156.
[3] “IMR”.
[4] “Convention”.
Relief sought
The applicant submits that IMR Recommendation was materially affected by errors of law, and if the Minister were to rely on the IMR Recommendation, or otherwise take account of it, those errors would infect the Minister’s decision as well, and the applicant therefore seeks:
a)a declaration and an injunction; and
b)that the Minister pay the applicant’s costs of the Appeal.
Applicable legal principles
Because the applicant is an “offshore entry person”[5] as defined by s.5(1) of the Migration Act the applicant is an unlawful non-citizen and is precluded from making a valid application for any visa as a result of s.46A of the Migration Act (subject to a limited ‘public interest’ exception).
[5] “OEP”.
In order to assess whether offshore entry persons such as the applicant may have a claim by which they might otherwise be owed protection obligations under the Convention (for the purpose of making a recommendation to the Minister pursuant to s.46A(7)) of the Migration Act a claims processing system for claimants known as the Refugee Status Assessment[6] was established by the Commonwealth Government. In this case, the applicant underwent a RSA on 26 October 2010.[7]
[6] “RSA”.
[7] CB 73-74.
The Commonwealth also established a process by which offshore entry persons such as the applicant could seek an independent merits review of recommendations made under the initial RSA process. Much has been written about the independent merits review process, but it can be summarised thus: the consideration of the exercise of the merits review power:
a)must be procedurally fair to the person whose review is under consideration;
b)must proceed by reference to correct legal principles, correctly applied; and
c)is not restricted by the refinements and attenuations of the various and many amendments to procedural fairness principles now enshrined in the Migration Act.[8]
[8] Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41 (“Plaintiff M61”); SZOZU v Minister for Immigration & Citizenship & Anor (2011) 123 ALD 61 at 62 per Rares J; [2011] FCA 1005 at para.3 per Rares J; MZYLF v Minister for Immigration & Citizenship & Anor [2011] FMCA 621 at paras.8-17 per Riethmuller FM.
Jurisdiction of this Court
The Application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[9] The Minister acknowledges that the IMR Recommendation does not constitute a “migration decision” such that the time limit conferred on certain “decisions” by s.477 of the Migration Act is applicable.[10]
[9] Migration Act, s.476(1); Plaintiff M61 CLR at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM.
[10] Minister’s Outline of Submissions, para.6, citing SZQDZ & Ors v Minister for Immigration & Citizenship& Anor (2012) 200 FCR 207; [2012] FCAFC 26.
Background
On 26 June 2010 the applicant arrived by boat at Christmas Island from Indonesia, and sought refugee status in Australia.[11]
[11] CB 54 and 75.
The applicant’s arrival was classified as an Irregular Maritime Arrival. The biodata completed by the applicant on 5 January 2010[12] confirmed the applicant:
a)was 24 years of age, having been born on 6 February 1988;[13]
b)completed high school and partially completed some tertiary studies;[14]
c)was working before he left Iraq, having “helped his father in furnishings” from 2007-2010;[15]
d)left his country of nationality because “he was threatened to be killed”;[16] and
e)his life was in danger because his relationship with his wife was not an approved relationship, and because of an internal conflict between militias within Iraq.[17]
[12] CB 3-27.
[13] CB 3.
[14] CB 5.
[15] CB 5.
[16] CB 11.
[17] CB 11 and 20-21.
In terms of the applicant’s relationship with his wife, the applicant confirmed in his entry biodata that:
a)whilst his marital status was circled as “Never Married”, that status was qualified by a further notation that “[the applicant] claims religious ceremony but not certified by the Courts. (never lived together)”;[18] and
b)in response to the Question “1. Why did you leave your country of nationality (country of residence)?”[19] he stated, amongst other things, that:
i)“[b]ecause of the relationship with the girl in the photos”;[20]
ii)because of the girl’s reputation as a former prostitute the applicant’s “uncle does not want her to marry him”;[21]
iii)because he was not permitted to have a civil ceremony, a religious ceremony was arranged;[22] and
iv)the relationship was, however, not one of which his family approved and he was told by his uncle that if he did not leave her he would be killed.[23]
[18] CB 6.
[19] CB 11.
[20] CB 11. The photos are reproduced at CB 70-72.
[21] CB 11.
[22] CB 11.
[23] CB 20.
The applicant also gave evidence in his biodata that he was being pursued in relation to an internal Iraqi conflict between militias, being the “Maadhi splinter group” and the “Badr Brigade”.[24]
[24] CB 21. The names for these two militia groups varied considerably in the materials before the IMR and in the IMR Recommendation, and, therefore, likewise vary in these Reasons for Judgment.
On 3 September 2010 the applicant made a Statutory Declaration in relation to the matters outlined above.[25] In the Applicant’s Statutory Declaration, the applicant declared that he had a fear of returning to Iraq because he would be persecuted and harmed as a result of an internal conflict between militias and because of his relationship with his wife.[26]
[25] CB 51-56 (“Applicant’s Statutory Declaration”).
[26] CB 55.
On 26 October 2010 the applicant was informed that his application seeking refugee status was rejected.[27] The applicant sought independent merits review on 15 November 2010.[28] Extensive submissions were filed with the IMR on behalf of the applicant on 15 March 2011.[29] On 6 April 2011 the applicant was interviewed by the IMR.[30]
[27] CB 73.
[28] CB 90.
[29] CB 97-120.
[30] “IMR Interview”. A copy of the transcript of the interview (“IMR Interview Transcript”) is attached to the affidavit of Tannaz Pasha, affirmed on 29 June 2012 ( “Ms Pasha’s Affidavit”).
On 28 September 2011, the applicant was notified that his application for independent merits review of his claim for a protection visa had been unsuccessful.[31]
The applicant’s claims
[31] CB 122-124.
Analysis of reasons
The applicant claimed to fear persecution in Iraq on the basis of his membership of a particular social group comprising people who transgress social and religious mores. The claim was put as follows:
a)the applicant claimed he was a Shia Muslim born in Zioqar Al Fahod, Iraq;
b)on 2 April 2009 the applicant married a Sunni Muslim and former prostitute in a religious ceremony. The applicant wanted to marry her in a civil or legal ceremony and transgressed his family’s honour. As a result he claimed to fear serious harm from his “uncle” who was the leader of a particular tribe;
c)on 23 March 2010, the applicant’s “uncle” and four men kidnapped him, held and tortured him for three days for the purpose of disciplining him and to force him to marry a different woman; and
d)on 10 April 2010, the applicant was shot at while socialising with friends at a coffee shop.[32]
[32] CB 53-53 and 99.
The applicant also made a claim of persecution on the basis of his imputed political opinion. The claim was put as follows:
a)on 19 June 2007, a fight erupted between the Al-Mahdi Army and the Badr Brigade. The Badr Brigade invaded the applicant’s family home to use it as a base to control the street;
b)the Al-Mahdi Army accused the applicant of assisting the Badr Brigade and the Badr Brigade accused him of confiscating their weapons and assisting the Al-Mahdi Army;
c)in 2010, the applicant’s uncle revived an outstanding warrant against the applicant which was first issued by the Al-Mahdi Army in 2007 to answer questions about the applicant’s alleged assistance to the Badr Brigade; and
d)the State was unable to protect him because the people from whom he feared harm were part of the government.[33]
[33] CB 53-54 and 99-100.
The applicant provided various untranslated documents including documents purporting to be his wife’s identity and citizenship documents and a photocopy of his marriage certificate. He also provided three photographs which he claimed depicted his wife.[34]
[34] CB 70-72.
Grounds of appeal
The applicant seeks this relief on the grounds set out at grounds 1 - 5 of the amended application filed 31 July 2012, which can be very broadly summarised as follows:
a)the IMR took into account irrelevant considerations in the course of her deliberations and therefore fell into error (grounds 1 – 2);
b)the IMR failed to take into account relevant considerations in the course of her deliberations and therefore fell into error (ground 3); and
c)the IMR failed to afford the applicant procedural fairness by:
i)failing to provide adequate reasons; and
ii)making adverse findings against the applicant that were irrational or illogical in the circumstances (grounds 4 and 5).
Ground 1
Ground 1 is as follows:
1.The Second Respondent took into account irrelevant considerations in the course of her deliberations as to whether the Applicant was a refugee for the purpose of meeting the criteria for eligibility for a protection visa as prescribed by s 36(2) of the Migration Act 1958.
PARTICULARS
(a)At [25] of her reasons, the Second Respondent infers that the prospect of contracting a “life threatening” sexually transmissible disease from his wife was something the Applicant ought to have considered when he commenced a sexual relationship with her (see also page 7 of the transcript annexed to the affidavit of T. Pasha).
(b)Having found that the Applicant’s response was “uninformed” or “untruthful” (also at [25]), the Second Respondent proceeded to make an adverse finding as to the Applicant’s credit on the basis of an irrelevant consideration.
Applicant’s submissions
The applicant submits that:
a)the IMR took into account irrelevant considerations relating to the sexual relationship between the applicant and his wife in the course of her deliberations as to whether the applicant was a refugee for the purpose of meeting the criteria for eligibility for a protection visa as prescribed by s.36(2) of the Migration Act;
b)the IMR inferred that the prospect of contracting a “life threatening” sexually transmissible disease from his wife was something the applicant ought to have considered when he commenced a sexual relationship with her;[35] and
c)having found that the Applicant’s response was “uninformed” or “untruthful” in relation to the issue of contracting a sexually transmitted disease from his wife,[36] the IMR proceeded to make an adverse finding as to the applicant’s credit on the basis of an irrelevant consideration.
[35] CB 130; IMR Recommendation at para.25.
[36] CB 130, IMR Recommendation at para.25.
Minister’s submissions
The Minister submitted that:
a)this ground is misconceived;
b)whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction, they do not encompass a failure expressly to mention or grapple with part of the competing body of evidence before the decision-maker relevant to a finding made in circumstances where the elements or integers of the claim for asylum are addressed;[37]
c)nor does it include the process of making the particular findings of fact upon which the decision-maker acts;[38]
d)it is for the decision-maker, as the sole arbiter of the facts and evidence, to identify such material as it finds relevant to its reasoning and to give it appropriate weight;[39] and
e)the applicant’s contention that the IMR undertook an erroneous reasoning process is no more than an impermissible attempt to review the merits of the Reviewer’s reasons.
[37] Citing Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at 423 per Allsop J; [2001] FCA 1196 at para.79 per Allsop J; SZQGC v Minister for Immigration & Citizenship & Anor (2012) 128 ALD 338; [2012] FCA 598.
[38] Citing Minister for Immigration & Multicultural Affairs v Yusuf & Anor (2001) 206 CLR 323 at 348 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.74 per McHugh, Gummow and Hayne JJ (“Yusuf”).
[39] Citing Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at paras.5-7 per Keifel, Nicholson and Downes JJ; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 per French, Sackville and Hely JJ; [2003] FCAFC 184 at para.46 per French, Sackville and Hely JJ (“Applicant WAEE”).
Consideration – ground 1
The IMR reasoned as follows:
a)on the basis of strong adverse credibility findings, the IMR comprehensively rejected the applicant’s claims to be a refugee in their entirety.[40] The IMR’s adverse credibility findings were based on a number of factors that were open to it as the sole arbiter of the facts and evidence. For instance, the IMR found that:
… overall … [the Applicant’s] account was not cogent, lacking in detail and unrealistic to the point that I cannot accept that any of the claimed events … [the Applicant] states took place, actually occurred.[41]
b)in particular, the IMR found the applicant’s numerous aspects of the applicant’s evidence to be “vague” and “implausible”, and his responses to questions about particular matters involving key events were “less than convincing”;[42]
c)in reaching these findings, the IMR expressly considered the documents provided by the applicant in support of his claims but gave these documents “no weight”. For instance, the IMR placed no weight on the documents and photographs as probative evidence that the applicant’s wife existed on the basis that the documents were photocopies and their provenance was unclear, as well as the identified concerns that it had with the credibility of his claims.[43] The IMR also did not place any weight on the purported marriage certificate on the basis that the document was a photocopy which did not contain the applicant’s surname and could have been obtained and manufactured for the purpose of enhancing the applicant’s claims.[44] The IMR also considered the document which the applicant claimed was a summons but found that this document was untranslated and at the IMR Interview the Arabic interpreter indicated that some of the document appeared to be in a language that deviated from Arabic;[45]
d)the IMR clearly considered and assessed this evidence and weighed it in the balance with the other evidence presented. This approach was correct.[46] It was open to the IMR to assess the credit of the applicant and then, in light of that assessment, consider what weight should be given to the supporting documents;[47]
e)there was nothing illogical about the IMR Recommendation that the documents submitted as corroboration of the applicant’s account, which was found to be false, deserve little or no weight;[48] and
f)the IMR was not required to accept the applicant’s claims at face value and the weight to be given to his claims and evidence was a matter for the IMR to assess as part of her fact-finding function. In particular, the IMR’s conclusion that the applicant’s claims were not credible was a finding of fact for the IMR par excellence.[49] These findings were open to the IMR on the evidence before her and the Court cannot review the merits of the IMR’s decision.[50] The IMR was entitled to reject the applicant’s claims on the basis of the inherent unlikelihood of the applicant’s narrative.[51]
[40] CB 153-155 at paras.140, 141 and 147.
[41] CB 150 at para.123.
[42] CB 149-154 at paras.114, 125, 128, 129, 131, 133, 134, 135, 136, 141, 143 and 144.
[43] CB 151 para.126-127.
[44] CB 152 at para.130; see also CB 131 at para.29 and IMR Interview Transcript, pages 7-8.
[45] CB 154 at para.145.
[46] Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30] (“Applicant S20/2002”).
[47] Minister for Immigration & Citizenship v SZNSP & Anor (2010) 115 ALD 294 at 299 per North and Lander JJ; [2010] FCAFC 50 at para.33 per North and Lander JJ.
[48] Minister for Immigration & Citizenship v SZJSS& Ors (2010) 243 CLR 164 at 177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 48 at para.35 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1580.
[49] Re Minister for Immigration & Multicultural Affairs & Ors; Ex parte Durairajasingham (2000) 58 ALD 609 at 625 per McHugh J; [2000] HCA 1 at para.67 per McHugh J (“Durairajasingham”).
[50] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272, 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
[51] See, for example: SZKOK v Minister for Immigration & Anor [2010] FMCA 90 at para.30 per Smith FM and WZAPC v Minister for Immigration & Anor [2012] FMCA 381 at paras.19-20 per Lindsay FM.
The IMR canvassed a wide range of factual material and issues in relation to the applicant’s relationship with his wife, including:
a)information in the applicant’s biodata form upon entry to Australia that he was unmarried, which the IMR considered of particular relevance when the basis for the applicant’s claim to have fled Iraq was the opprobrium arising from his marriage;[52]
b)the applicant’s uninformative responses to questions concerning his appreciation of his entry into such a “problematic relationship”, and the applicant’s inability to engage in a meaningful manner in relation to questions about the long-term prospects of the relationship;[53]
c)placing no weight on documents purporting to be identity and citizenship documents for the wife, given that the documents were photocopies only and that their provenance was not clear;[54]
d)photos alleged to be the wife which varied considerably as to her portrayal, and which contained no identifying link with any identity documents, and upon which no weight was placed;[55]
e)the inability to elicit from the applicant any realistic information as to how he met his wife, and as to the course of their relationship to the point where they wished to marry in the face of opposition from their family and religious communities;[56]
f)the implausibility of a Shia Muslim man and a Sunnii Muslim woman being married without difficulty, which the applicant claimed they could be;[57]
g)the non-inclusion on the alleged marriage certificate of the applicant’s surname, and the possibility that such a document could have been obtained and manufactured for the purpose of enhancing the applicant's claim;[58]
h)the unconvincing nature of the applicant's explanation for the failure to invite to the wedding his friend who had introduced him to his wife;[59]
i)the applicant’s claim, made for the first time at the IMR Interview, in response to a question concerning the possibility of an unwanted pregnancy prior to the applicant and the woman marrying, that his then fiancée had indeed become pregnant and had an abortion, which the applicant said he had not disclosed before because he was not asked and because the abortion took place when the pregnancy was in its early stages;[60] and
j)the applicant’s inability to provide any memento of his religious marriage, other than an explicit video that he said he did not wish to submit as evidence.[61]
[52] CB 150 at para.124.
[53] CB 151 at para.125.
[54] CB 151 at para.126.
[55] CB 151 at para.127.
[56] CB 151 at para.129.
[57] CB 151-152 at para.130.
[58] CB 152 at para.130.
[59] CB 152 at para.131.
[60] CB 152 at paras.132-135.
[61] CB 153 at paras.137-139.
An IMR Recommendation should not be analysed minutely with a view to perceiving error.[62]
[62] Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In the above factual and legal circumstances, and in the context of a judicial review application, it is misconceived for the applicant to alight upon one factual matter among many which contributed to the factual and credibility findings made by the IMR, both overall, and in terms of the applicant's alleged relationship with his wife, a former Sunni prostitute, and suggest that that one factual matter constitutes the taking into account of an irrelevant consideration. To do so confuses the notion of relevant and irrelevant considerations with particular pieces of evidence, which it is important not to confuse. In Li Shi Ping & Anor v Minister for Immigration, Local Government and Ethnic Affairs[63] the Full Court of the Federal Court drew attention to the necessity not to confuse “taking into account relevant considerations with taking into account particular pieces of evidence.”[64] The Full Court went on to observe that the relevant consideration to be taken into account was what might happen to the appellants if they were returned to China.[65] The distinction highlighted by Li Shi Ping was referred to in Xie v The Minister for Immigration and Ethnic Affairs[66] where the Federal Court identified the primary relevant considerations as being “those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.”[67]
[63] (1994) 35 ALD 225) (“Li Shi Ping”).
[64] Li Shi Ping at 236 per Carr J (with whom Sheppard and Gummow JJ agreed).
[65] Li Shi Ping at 236 per Carr J (with whom Sheppard and Gummow JJ agreed).
[66] (Unreported, WAG 125 of 1994, French J, 9 August 1995) (“Xie”).
[67] Xie at page 16 per French J.
In any event, the issue of the possibility of the applicant considering whether or not a woman might have a sexually transmissible disease was a matter which might reasonably be said to arise for consideration when determining whether or not to marry a woman, particularly in circumstances where the woman:
a)had been a prostitute;
b)was not from the applicant’s family, particularly in the context of the applicant's own evidence that families in Iraq usually sought out cousins for their children to marry; and
c)was not from the applicant’s Shia branch of Islam, but from the Sunni branch of Islam, in circumstances where there had been, and was, ongoing sectarian violence between those two branches in Iran,
and when considering the plausibility of the applicant's account and determining the applicant’s credibility.
For all of the above reasons, ground 1 of the application seeks to do no more than interfere with a factual finding by the IMR. That is not a proper basis judicial review. It follows that ground 1 is not made out.
Ground 2
Ground 2 is as follows:
2.At [31] of her reasons, the Second Respondent took into account an irrelevant consideration to form an adverse view of the Applicant’s credibility by considering the non attendance of the Applicant’s friend at his wedding to be an issue worthy of raising in her reasons (see paragraph [131] of the Second Respondent’s reasons).
Applicant’s submissions
The applicant submits that:
a)the IMR took into account an irrelevant consideration to form an adverse view of the applicant’s credibility by considering the non attendance of the applicant’s friend at his wedding to be an issue worthy of raising in her reasons;[68] and
b)such a finding was a finding based on an irrelevant consideration and accordingly, an error occurred.
[68] CB 131 at para.31.
Minister’s submissions
The Minister repeats the submissions made in respect of ground 1.
Consideration – ground 2
The passage complained of in the IMR Recommendation is as follows:
I also found it perplexing that [applicant's friend] would not be invited to the claimant’s wedding. It was [applicant's friend] after all, who it is claimed, facilitated his meeting with his spouse. I have considered the claimant’s representative’s statements that the claimant may have been embarrassed and that that was why he did not invite [applicant's friend] because [applicant's friend] may not have intended getting married. However, I found this explanation was not convincing as [applicant's friend] would not have had any cause to disapprove of the claimant’s union, given that he himself was dating the claimant’s wife's sister, who was also a prostitute. I do not see why [applicant's friend] may have had to be embarrassed because of the claimant’s wedding.[69]
[69] CB 152 at para.131.
Ground 2 must fail for essentially the same reasons as ground 1. The so called “irrelevant consideration” is no more than a single piece of evidence amongst a multitude considered by the IMR when considering the plausibility of the applicant's account and determining the applicant’s credibility.[70] In that regard the applicant’s failure to invite to his wedding his friend who allegedly introduced him to his claimed wife, was evidence that the IMR was entitled to consider and weigh as part of the evidence.
[70] Li Shi Ping at 236 per Carr J (with whom Sheppard and Gummow JJ agreed).
Ground 2 of the application seeks to do no more than interfere with a single, and relatively inconsequential, factual finding by the IMR. That is not a proper basis judicial review. It follows that ground 2 is not made out.
Grounds 3 and 4
Grounds 3 and 4 are as follows:
3.The Second Respondent failed to take into account relevant considerations in the course of her deliberations as to whether the Applicant was a refugee for the purpose of meeting the criteria for eligibility for a protection visa as prescribed by s 36(2) of the Migration Act 1958.
PARTICULARS
(a)Notwithstanding the Second Respondent devoted a considerable portion of her reasons to the Applicant’s experiences with Al-Mahdi and Badra Militias (see paragraphs [63] – [73], also [106-[107] the Second Respondent fails to address the “Militia” issue in her “Findings and Reasons” other than a brief reference at paragraphs [144]-[146].
4.Further, or in the alternative, the Second Respondent has failed to afford the Applicant procedural fairness by failing to provide adequate reasons as to why his claims in relation to persecution by militias upon return to Iraq should fail.
Applicant’s submissions
The applicant submits that:
a)it is appropriate that grounds 3 and 4 are dealt with together as they relate to the “militia” issue;
b)the IMR failed to take into account relevant considerations relating to the militia issue in the course of her deliberations as to whether the applicant was a refugee for the purpose of meeting the criteria for eligibility for a protection visa as prescribed by s.36(2) of the Migration Act;
c)firstly, the applicant’s evidence in relation to why he had a well founded fear of persecution as a result of the conflict between militias was entirely consistent throughout the course of his application;
d)secondly, notwithstanding the IMR devoted a considerable portion of her reasons to the applicant’s experiences with Al-Mahdi and Badra Militias,[71] the IMR fails to address the “Militia” issue in her “Findings and Reasons” other than a brief reference;[72]
e)the IMR has failed to afford the applicant procedural fairness by failing to provide adequate reasons as to why his claims in relation to persecution by militias upon return to Iraq should fail; and
f)the fact that the IMR did not undertake this process of decision making reveals a flaw in her decision making to the extent that the applicant has not been afforded procedural fairness; both in terms of the adequacy of her reasons for her decision or findings.[73]
[71] CB 136-138 at paras.63-73 and CB 146-148 at paras.106-107.
[72] CB 154 at paras.144-146.
[73] Citing AK v Western Australia (2008) 232 CR 438; [2008] HCA 8 (“AK”).
Minister’s submissions
In respect of ground 3 the Minister repeated the submissions made on ground 1.
On ground 4 the Minister submitted that:
a)the applicant’s fourth ground of review is also misconceived. There is no common law duty on an administrative decision-maker to give reasons for his or her decision.[74] In addition, the duty to give reasons, usually imposed expressly on a decision-maker by statute, is not recognised as an aspect of the principles of procedural fairness;[75]
b)the applicant cites AK v The State of Western Australia[76] in support of his contention, but this is a criminal case concerned with the application of provisions from the Criminal Procedure Act 2004 (WA),[77] including ss.119(3) and 120(2). Specifically, s.120(2) of the Criminal Procedure Act requires that a judge in a criminal trial by judge alone in Western Australia must include in a judgment the principles of law the judge has applied and the findings of fact relied upon. This is not in any way an applicable precedent to the present case; and
c)as the applicant acknowledges that the IMR did consider his claims to fear persecution from militias, the applicant’s subsequent contention that these reasons were “inadequate” impermissibly cavils with the merits of the IMR Recommendation.
[74] Citing Yusuf CLR at 348 per McHugh, Gummow and Hayne JJ; HCA at para.74 per McHugh, Gummow and Hayne JJ.
[75] Citing Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 170 at 177 per Gray J; [2004] FCA 1590 at para.26 per Gray J.
[76] [2008] HCA 8.
[77] “Criminal Procedure Act”.
Consideration – grounds 3 and 4
In relation to ground 3, asserting that the IMR failed to address that the militia issue in the findings and reasons in the IMR Recommendation, other than by way of a brief reference, those findings and reasons need to be considered in their proper context, and in their totality.
The IMR Recommendation sets out at some length issues related to the militia arising from the IMR Interview, as follows:
a)the IMR sets out the fact that the applicant's father received a death threat from the militias;[78]
b)the IMR queried how it was that a family matter involving the applicant had escalated to involve Shia militias to which the applicant responded that it was an old matter which had been re-agitated (implicitly because of the applicant’s marriage);[79]
c)the IMR asked about the conflict between the two Shia militias involved with the occupation of the applicant's family home,[80] and as a consequence of which he alleged he had been threatened with death and summoned to attend a meeting with the “martyrs”.[81] The IMR considered a document tendered by the applicant which was said to contain the threat and observed that its provenance was not clear, and it did not appear to be in the proper (or official) Arabic language, and nor was it on official letterhead, and hence the IMR might not place significant weight upon it.[82] The IMR noted that the applicant's claims with respect to the raid on the applicant's family home by the Al-Mahdi Army in which they discovered weapons allegedly left behind by the Badra Brigade who had earlier taken control of the family home. Consequently, the Al-Mahdi Army threatened to kill the applicant, and it was only his father's intervention which prevented this from occurring. The Al-Mahdi Army had taken the weapons left behind by the Badra Brigade, and subsequently the Badra Brigade issued a threat to kill the applicant. The applicant said that he was " in their face", and, therefore, the threat to kill was issued against him, even though it was his father’s house;[83] and
d)the applicant confirmed to the IMR that his family still live in the house.[84] Notwithstanding that the above events occurred in 2007 the applicant asserted in 2010 that he was still the subject of a death threat arising from this incident, and that he never went back to the family home.[85]
[78] CB 136 at para.62.
[79] CB 136 at para.63.
[80] CB 136-137 at paras.64-65.
[81] CB 137 at para.65.
[82] CB 137 at para.65.
[83] CB 137 at paras.67-70.
[84] CB 137 at para.70.
[85] CB 138 at paras.74-75.
The IMR set out detailed country information concerning the Al-Mahdi Army and the Badra Brigade in the IMR recommendation, which noted the ongoing violence between rival Shia militias, most notably the Al- Mahdi Army and the Badra Brigades.[86]
[86] CB 146-148 at paras.106-107. Typed from the original without amendment.
In the IMR Recommendation findings and reasons the references to the militia issue are not restricted to that referred to by the applicant in ground 3. The IMR notes very early in the findings and reasons that the applicant's claim is to fear serious harm:
… by his “uncle”, …[name], (the leader of the … tribe) because he married a former prostitute in a religious ceremony and wanted to marry her in a civil ceremony that transgressed his family’s honour. He also claims to be wanted by both the Al Mahdy Army as well as the Badr Brigade – the Al-Mahdi Army accused the claimant of assisting the Badr Brigade and the Badr Brigade accused him of confiscating some of their weapons and of assisting the Al Mahdi Army. The claimant’s uncle in 2010 revived an outstanding warrant against the claimant first issued in 2007 by the Al Mahdi Army to answer questions regarding his assistance to the Badr Forces.[87]
[87] CB 148-149 at para.113.
The IMR also notes that as he does not accept that the applicant was ever married to a woman whom it was claimed was a former prostitute of the Sunni Muslim faith, it followed that the IMR also did not accept that the applicant was ever pursued by an “uncle” because of the claim to have brought shame upon the tribe, or that the “uncle” reactivated an outstanding summons in 2010, which had initially been issued in 2007.[88]
[88] CB 153 at para.140.
The asserted “brief reference” to the militia issue in the IMR Recommendation findings and reasons at paragraphs 144 to 146 is as follows:
144. The claimant's account of the initial dispute he had with the Al-Mahdi army operatives [is] similarly vague and unconvincing. The claimant was not, for example, able to explain why if his father was the head of the household, his father would not have been blamed for having let Badr forces use his home. The claimant simply stated that "he was in their face" without explaining how or why he personally would be targeted as opposed to his father. Furthermore, as I noted at interview, the claimant's family, including his family is still residing in that home which is the subject of the dispute in terms of the Al-Mahdi Army being hostile towards the claimant as well as the Badr Brigade being hostile and accusing him of stealing their weapons.
145. I have had regard to the most recent summons document. As put to the claimant at interview I did not see the purpose of having a photocopy sent for forensic analysis as studies would not reveal its provenance or its authenticity. The fact that it was not in a language that deviated from Arabic also leads me to doubt its authenticity.
146. Moreover, I find it implausible that it was only after … [the applicants “uncle”] re-activated the matter that the summons’ was reissued in 2010. I would have expected that had Al-Mahdi wanted to find the claimant, even in Baghdad they would have done so, particularly as his uncle could have directed them to him. Furthermore, I do not accept that the claimant would have returned to his home town without fear in 2009 even though he was in breach of an outstanding summons issued by the powerful Al Mahdi army against him. I do not find it plausible that the claimant would have thought after three years that they would have simply forgot about it.[89]
[89] CB 154 at paras.144-146. Typed from the original without amendment.
The IMR went on to reject the following claims made by the applicant:
· He had received a summons in 2007 seeking that he appear before the Al-Mahdi group because his family home had been invaded by the Badra Forces to use it as a base to contain detained Al-Mahdi army prisoners there;
· In 2007 after fighting ended between the Al Mahdi Army and that the Badra Brigade, the Al-Mahdi Army stormed into their house and found Badr Brigade weapons in their house;
· He was imputed with a political opinion by Al-Mahdi forces of being an Iranian agent;
· The next day the Badra Forces came to his house and asked for their weapons back and the claimant and his family told them that the Al-Mahdi forces had taken them;
· The claimant's father was taken to Badra Forces headquarters for interrogation;
· The claimant was accused of stealing Badra Forces’ weapons and demanded that he returned weapons in seven days or they would kill him;
· His father went into hiding as a consequence;
· He escaped from both the Al Mahdi Army and the Badr Forces and fled to study in Baghdad for two years;
· He returned to his home area in 2009 because he considered that both parties were no longer in pursuit of him;
· He received in April 2010 a further summons from the Al Mahdi Army stating that he had not attended the previous summons and was required to do so now;
· The claimant thought that his uncle had had the 2007 summons reactivated in revenge for the claimant wanting to marry… [name] in a civil as well as religious ceremony.[90]
[90] CB 154-155 at para.147.
The IMR's ultimate finding that the applicant did not meet the criterion for a protection visa was said to have been made “…taking into account all of the integers of the claimant's claims, both individually and cumulatively,…."[91]
[91] CB 155 at para.150
The consistency of the applicant's account must be considered against the totality of the IMR's findings and reasons, particularly with respect to the applicant's credibility and the plausibility of the applicant's account. As is noted above, the IMR found that the applicant's account:
a)overall, was not cogent; and
b)was lacking in detail and unrealistic, so much so, that the IMR did not accept that any of the claimed events actually occurred.[92]
[92] CB150 at para.123.
Even if the applicant's contention that the claims made in relation to the militia were consistent, the IMR must be taken to have found that they did not occur.
As findings of fact and credit are matters for the IMR, the IMR’s findings in this respect ought not to be revised upon judicial review, especially so where, as here, the IMR points both overall and specifically to unexplained aspects of the applicants claim in respect of which the applicant was not able to satisfy the IMR.
The assertion that the findings made by the IMR do not address the militia issue requires the Court to look at the IMR Recommendation as a whole. When that is done it can be seen that the militia issue has been addressed:
a)first, and particularly, as part of the IMR Interview process which is recounted in the IMR recommendation;
b)second, as an issue identified early in the findings and reasons in the IMR recommendation;
c)third, in the three paragraphs quoted above in which conclusions are reached as to the applicant’s claims in this respect;[93] and
d)fourth, in the rejection of those claims, as also set out above.[94]
[93] See para.42 above.
[94] See para.43 above.
In the circumstances, the applicant's complaint is, once again, no more than a complaint about the fact-finding task undertaken by the IMR, and is not a matter for judicial review by this Court.
The reasoning may not be long and detailed, but in the context of economic and efficient administrative migration decision-making, it is adequate, cogent and sufficiently well explained. The findings and reasons are ones that were reasonably open to the IMR having regard to the IMR’s factual and credit findings, both overall, and specifically in relation to the militia issue.
The references to AK and to the Criminal Procedure Act, given the specificity of the statutory requirements set out in the latter, are neither relevant nor helpful.
In the circumstances, both grounds 3 and 4 have not been made out.
Ground 5:
Ground 5 is as follows:
5. The Second Respondent failed to afford the Applicant procedural fairness throughout the course of her deliberations as to whether the Applicant was a refugee for the purpose of meeting the criteria for eligibility for a protection visa as prescribed by s 36(2) of the Migration Act 1958.
PARTICULARS
(a)The Second Respondent fell into jurisdictional error by making an adverse finding against the Applicant as a result of a failure to explain his marriage situation at the first opportunity (see paragraph [124]-[125] of the Second Respondent’s reasons);
(b)The Second Respondent fell into jurisdictional error by making an adverse finding as a result of failing to raise the fact his wife had an abortion at earlier interviews (see paragraph [134] of the Second Respondent’s reasons);
(c)The Second Respondent fell into jurisdictional error by making an adverse finding in relation to the authenticity of the documentation supplied by the Applicant in support of the contention he was married.
(d)The Second Respondent generally made findings as to the Applicant’s credit that were irrational or illogical in the circumstances.
Applicant’s submissions
The applicant submits that:
a)there can be no doubt that the various inconsistencies in the applicant’s evidence were regarded by the IMR as being destructive of the applicant’s credibility. This in itself is not an appealable error;
b)an assessment of an applicant’s credibility was within the legitimate province of matters for assessment by the IMR;[95]
[95] Citing Durairajasingham ALD at 625 per McHugh J; HCA at para.67 per McHugh J and Minister for Immigration & Citizenship v SZOCT & Anor (2010) 189 FCR 577 at 594-595 per Buchanan J; [2010] FCAFC 159 at para.63 per Buchanan J.
c)the inconsistencies relied upon by the IMR in forming an adverse opinion about the credibility of the applicant, whilst clearly within her discretion, do not then permit the IMR to justify conclusions of fabrication of evidence;
d)the IMR fell into jurisdictional error by making an adverse finding against the applicant as a result of a failure to explain his marriage situation at the first opportunity;[96]
e)a failure to afford procedural fairness occurs where the IMR takes an adverse view of the applicant’s credibility on the basis that the applicant “failed” to mention a matter in the original refugee claim form when, in fact, that claim form did mention that matter;[97]
f)the IMR fell into jurisdictional error by making an adverse finding as a result of failing to raise the fact his wife had an abortion at earlier interviews;[98]
g)another example of the application of the principle formulated above is a finding that the applicant’s evidence on a certain point was inconsistent with other evidence when, in truth, there was no inconsistency.[99] Such a principle applies to the findings relating to the applicant’s partner’s abortion;
h)the IMR fell into jurisdictional error by making an adverse finding in relation to the authenticity of the documentation supplied by the applicant in support of the contention he was married;
i)at no stage in her findings did the IMR entertain or deal with the possibility that the documents were genuine and were an important piece of objective evidence;[100]
j)rather, the IMR simply arrived at a conclusion that breached rules of procedural fairness by arriving at findings that “which no rational or logical decision maker could arrive at the same evidence”;[101]
k)the IMR generally made findings as to the applicant’s credit that were irrational or illogical in the circumstances; and
l)the inconsistencies relied upon by the IMR in this case were not so significant as to entitle the IMR to make adverse findings as to the applicant’s credibility.[102]
[96] CB 150-151 at paras.124-125.
[97] Citing SZGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 431 at para.36 per Rares J.
[98] CB 152 at para.134.
[99] Citing MZYIC v Minister for Immigration and Citizenship & Anor (2010) 119 ALD 149 at 152-154 per Bromberg J; [2010] FCA 1368; at paras.18, 21 and 23-27 per Bromberg J.
[100] Citing WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 at 578-579 per Lee and Moore JJ; [2004] FCAFC 74 at paras.43-48 per Lee and Moore JJ.
[101] Citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 at 647-467 per Crennan and Bell JJ; [2010] HCA 16 at paras.130-131 per Crennan and Bell JJ (“SZMDS”).
[102] Citing WZANW v Minister for Immigration & Anor [2009] FMCA 1075 at para.100 per Lucev FM.
Minister’s submissions
The Minister submitted that:
a)the applicant’s fifth ground pleads that the IMR fell into jurisdictional error in making adverse findings in relation to the applicant’s failure to explain his marriage situation at the first opportunity,[103] and his failure prior to his interview before the IMR to mention that his wife had been forced to have an abortion.[104] This ground fails on the facts;
[103] CB 150-151 at paras.124-125.
[104] CB 152 at para.134.
b)the applicant correctly acknowledges that it was “clearly within… [the Reviewer’s] discretion”[105] to rely on the identified inconsistencies in assessing the credibility of the applicant’s evidence, but again enters into impermissible merits review in submitting that it was not open to the IMR to conclude on the basis of these findings that the applicant’s evidence was fabricated;
[105] Applicant’s Outline, paras.73-75.
c)contrary to what is suggested by the applicant, the IMR Recommendation about the credibility of the applicant’s claims were findings of fact that were open to the IMR on the evidence before her. Specifically, it was open to the IMR to find that the applicant:
i)had indicated in his biodata form that he was “unmarried”; and
ii)provided a similar response in his early entry interview;[106]
[106] CB 6.
d)the IMR expressly raised with the applicant at interview the concerns she had about the omissions and inconsistencies in his evidence.[107] The applicant accepted the IMR’s assessment of the evidence but submitted that he had incorrectly completed these forms because he was tired after his boat arrival and no one had previously asked him if his wife had had an abortion. The IMR expressly considered but did not accept the applicant’s explanations for the deficiencies in his evidence.[108] No error is revealed in the IMR Recommendation;
[107] CB 129 at para.16, CB 132 at para.35 and CB 139 at para.84.
[108] CB 150 at para.124 and CB 152 at para.134.
e)the applicant also variously asserts in his written submissions that:
i)there was no evidence to support the IMR Recommendation;[109]
ii)the IMR made findings that were irrational or illogical;[110] and
iii)the applicant was denied procedural fairness in respect of “an important piece of evidence”;[111]
f)none of these alleged errors are pleaded in the amended application but cannot, in any event, be made out;
g)there was no error in the IMR’s assessment of the evidence before it;
h)nor is this a case where there was no probative evidence at all to support the IMR’s findings or a case where it could be said that reasonable minds might not reach the same conclusion on the evidence.[112] The applicant’s description of the Tribunal’s reasoning as being “illogical” or “irrational” should be properly viewed as merely an emphatic way of expressing disagreement with the factual conclusions drawn by the IMR;[113] and
i)contrary to what is asserted by the applicant in his written submissions,[114] the weight to be attached to the identified inconsistencies in his evidence was a factual matter solely for the IMR to determine. The decision in WZANW[115] does not establish otherwise.
[109] Applicant’s Outline, para.79.
[110] Applicant’s Outline, paras.82-83.
[111] Applicant’s Outline, para.81.
[112] Citing SZMDS CLR at 648 per Crennan and Bell JJ; HCA at para.131 per Crennan and Bell JJ.
[113] Citing Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J; HCA 21 at para.40 per Gleeson CJ and McHugh J; Applicant S20 ALJR at 1167 per Gleeson CJ; HCA at para.5 per Gleeson CJ.
[114] Applicant’s Outline, para.83.
[115] WZANW at para.100 per Lucev FM (cited at Applicant’s Outline at para.8).
Consideration – ground 5
The applicant asserts that the IMR found that documents relied upon in relation to the marriage were fabricated. There was, however, no such finding by the IMR. Rather, the IMR placed no weight upon the documents in relation to the marriage because:
a)their provenance was not clear;
b)they were photocopies only; and
c)of other findings as to the applicants credibility generally.
The issues as to the applicant’s credibility ranged across a number of matters associated with his relationship with his wife, including:
a)the vagueness of the applicant’s evidence, and
b)the “lack of an ability to engage in any meaningful manner"[116] by the applicant in relation to a variety of issues associated with the relationship with his wife, including:
i)the longer term prospects for the relationship;[117]
ii)an inability to explain why the applicant had entered into the relationship;[118]
iii)aside from saying that they had been introduced by his friend, an inability to describe the circumstances in which they had met;[119]
iv)the applicant’s “blithe” statements in relation to difficulties which might arise from a Shia man marrying a Sunni woman, who had been a prostitute; [120]
c)the failure to have previously mentioned significant events, such as the wife’s pregnancy and subsequent abortion.[121]
[116] CB 151 at para.125.
[117] CB 151 at para.125.
[118] CB 151 at para.128.
[119] CB 151 at para.129.
[120] CB 151-152 at para.130.
[121] CB 152 at paras.133-134.
The adverse finding made by the IMR in relation to the applicants credibility was not made solely, or even in large part, on the basis of the applicant's failure to explain his marriage situation at the first available opportunity. The applicant’s entry of “unmarried” on his biodata form upon arrival to Australia was a matter which the IMR took into account, and indeed “attach[ed] some weight” to, having regard to the claim arising from the applicant having fled Iraq because of the problems which he asserted occurred as a result of his “marriage” to the Sunni former prostitute.[122]
[122] CB 150-151 at para.124.
There was an obligation to put matters to the applicant in such a way as to give the applicant a sufficient opportunity to give evidence or make submissions about any issue in respect of which the IMR reached an adverse conclusion which was in part determinative of the question as to whether or not the applicant held a well-founded fear of persecution.[123] There was no failure to afford the applicant procedural fairness in relation to this aspect of the evidence. The nature of the biodata entry was specifically put to the applicant during the course of the IMR Interview, and the applicant’s response is reflected in the IMR's findings and reasons, before the IMR goes on to attach some weight to the applicant’s biodata entry in relation to his marital status.[124]
[123] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152 at 165 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; [2006] HCA 63 at para.44 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[124] CB 150-151 at para.124.
The findings made by the IMR in relation to the abortion were findings that were open to the IMR on the facts. There is no jurisdictional error in making an adverse credibility finding as to the applicant's failure to raise this matter, which the IMR considered to be important, in the context of the relationship between the applicant and his wife, earlier than the IMR Interview stage.[125] Administrative decision makers routinely make adverse findings as a consequence of a party making a new claim which might be considered significant in the relevant factual context at an advanced stage of the administrative proceedings. The IMR's findings with respect to the abortion issue were not findings founded in inconsistency, but rather the failure to raise the matter until the IMR Interview stage.
[125] CB 152 at paras.133-134.
Ultimately, it was for the applicant to satisfy the IMR as to the existence of the marriage, and the applicant simply failed to do so because his evidence, considered in its totality, lacked credibility.
The applicant also submits that there has been a denial of procedural fairness in that the findings as to the applicant's credit are irrational or illogical in the circumstances.
In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB[126] it was said that:
… 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.[127]
[126] (2004) 78 ALJR 992; [2004] HCA 32.
[127] SGLB ALJR at 998 per Gummow and Hayne JJ; HCA at para.38 per Gummow and Hayne JJ.
In the High Court in SZMDS the plurality majority Justices accepted a submission that:
…not every instance of illogicality or irrationality in reasoning could give rise to jurisdictional error, … if illogicality or irrationality occurs at the point of satisfaction (for the purposes of s 65 of the [Migration] Act) then this is a jurisdictional fact and a jurisdictional error is established.[128]
[128] SZMDS CLR at 643 per Crennan and Bell JJ; HCA at para.119 per Crennan and Bell JJ.
Those plurality Justices went on to say that:
…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.[129]
[129] SZMDS CLR at 647-648 per Crennan and Bell JJ; HCA at para.130 per Crennan and Bell JJ.
Importantly, the above observations were caveated by the following observation of the same plurality Justices:
…a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[130]
[130] SZMDS CLR at 649-650 per Crennan and Bell JJ; HCA at para.135 per Crennan and Bell JJ.
The High Court’s decision in SZMDS establishes that illogicality or irrationality in the reasoning of an administrative decision-maker may constitute a basis for judicial review, however, this ground may only succeed in a limited range of cases.
In SZOOR v Minister for Immigration & Citizenship & Anor[131] it was observed that:
The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.[132]
and further that:
… Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision….[133]
[131] (2012) 202 FCR 1; [2012] FCAFC 58 (“SZOOR”).
[132] SZOOR FCR at 7 per Rares J; FCAFC at para.15 per Rares J.
[133] SZOOR FCR at 23 per McKerracher J; FCAFC at para.85 per McKerracher J.
In this case the findings as to credibility which were made by the IMR were findings which were open on the factual material before the IMR, for reasons set out above both in relation to this ground, and also grounds 1 to 4. Likewise, those findings have a logic and rationale discernible from and on that same factual material. The IMR arrived at factual conclusions which were within the reasonable range of factual conclusions open to an administrative decision maker. Other administrative decision makers might have made findings on any or all the materials which differed from those of the IMR, but those differences would only be the result of reasonable minds differing in their interpretation of the factual material, or the weight to be attributed to various aspects of the factual material, before the IMR. Still other administrative decision makers might have made the same recommendation as the IMR, but arrived at that recommendation adopting different findings and a different rationale. In the above circumstances there is no illogicality or irrationality discernible in the IMR's findings and reasons.
For the reasons set out above, none of the particular aspects of ground 5 asserted by the applicant have been made out, and ground 5 has therefore not been made out.
Conclusion
The Court has concluded that the applicant has failed to make out any of the grounds of the application. It follows that the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 17 May 2013
2
34
0