YANG v Minister for Immigration

[2020] FCCA 1109

FEDERAL CIRCUIT COURT OF AUSTRALIA

YANG v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1109

Catchwords:
MIGRATION – Criminal charges for rape and sexual assault laid against applicant – decision by delegate to cancel student visa affirmed by Tribunal before applicant committed for trial – evidence of applicant found to be unpersuasive, vague and unreliable – no irrationality or illogicality on the part of the Tribunal – decision of Tribunal not legally unreasonable – no jurisdictional error established – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(e), 116(1)(e)(i), 359A.

Cases cited:

Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22.

Shrestha v Minister for Immigration and Border Protection & Anor (2018) 264

CLR 151.

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

NADH of 2001 v Minister for Immigration, Multicultural and Indigenous Affairs

(2004) 214 ALR 264.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

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

AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261

FCR 503.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

Applicant: SUNGI YANG

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 928 of 2019

Judgment of: Judge Egan

Hearing date: 7 May 2020

Date of Last Submission: 7 May 2020

Delivered at: Brisbane

Delivered on: 12 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Black

Solicitors for the Applicant: Park & Co Lawyers

Counsel for the First Respondent: Ms Hoiberg

Solicitors for the First Respondent: MinterEllison

Second Respondent Submitting appearance save as to costs

ORDERS

1. The application for review filed on 25 October 2019 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 928 of 2019

SUNGI YANG

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of South Korea who lawfully entered Australia on a Subclass 500 (Student) visa.

2. In February 2019, the applicant was charged with one (1) count of rape and two (2) counts of sexual assault alleged to have been committed by him on 18 and 19 March 2018.

3. On 15 April 2019, a delegate of the Minister gave to the applicant a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa pursuant to the provisions of s. 116(1)(e) of the Migration Act 1958 (Cth) (‘the Act’).

4. On 20 May 2019, the delegate decided not to cancel the applicant’s visa.

5. Notwithstanding the decision of 20 May 2019, on 21 May 2019 the delegate issued another NOICC pursuant to s. 116(1)(e)(i) of the Act. In response to having received such notice, the applicant provided the following documentation to the Department on 4 June 2019:

   (a)        A written submission (CB p. 12).

   (b)Medical evidence from the criminal proceeding (CB pp. 23, 26).

   (c)        The police statement from the complainant (CB p. 31).

   (d)        A statement from the Applicant’s girlfriend (CB p. 38).

   (e)Transcripts from audio recordings of conversations between the Applicant and the complainant (CB p. 46).

6. On 29 July 2019, the delegate decided to cancel the applicant’s visa. On 31 July 2019, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.

7. On about 13 September 2019, the Tribunal sent to the applicant a letter pursuant to s. 359A of the Act inviting the applicant to comment on or to respond to certain information which the Tribunal considered would, subject to any comments by way of response, be the reason, or part of the reason, for affirming the decision under review. [1] The letter relevantly provided as follows:

   [1]        Court Book (CB) p. 125.

   “Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   -   The Queensland Police materials, including QP9s and Bench Charge Sheets in relation to relevant offences in your review proceedings, including a number of alleged sexual offences currently before the Court (see attached copy of QP9s and Bench Charge Sheets); and

   -   Your Queensland Person History (see attached copy of your Queensland Person History).

   This information is relevant to the review because it might suggest that, pursuant to s116(1)(e)(i) of the Act, your presence in Australia is or may be a risk to the Australian community, or a segment thereof.

   If we rely on this information in making our decision, we may affirm the decision under review to cancel your Subclass 500 (Student) visa as we may find that your presence in Australia is or may be a risk to the Australian community.

   The Tribunal will discuss this information with you at the hearing and you will be given every opportunity to respond. You may also give comments on or respond to the above information in writing, prior to the scheduled hearing, but you are not obligated to.”

8. In response to the s. 359A letter, the applicant’s representative forwarded further submissions, audio recordings and statements to the Tribunal.

9. On 20 September 2019, the Tribunal conducted a hearing.

10. On 23 September 2019, the Tribunal affirmed the decision of the delegate to cancel the visa pursuant to s. 116(1)(e)(i) of the Act. Section 116(1)(e) provided as follows:

    “Section 116 – Power to cancel

    (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    …

    (e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i)  the health, safety or good order of the Australian community or a segment of the Australian community; or

    (ii)  its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or”

11. The words “the presence of (the applicant) in Australia is or may be, or would or might be, a risk to …” in s. 116(1)(e) are of wide scope. They invest in a decision maker a significant subjective element to the exercise of the discretionary power to cancel the visa.

12. On its proper construction, the section does not require that there be proof of any particular fact, matter or circumstance before the exercise of the discretion to cancel takes place. The mere possibility that something might occur so as to risk the health, safety or good order of the Australian community or a segment of the Australian community is enough to found a basis for the exercise of the discretion.

13. In Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [33] per Gageler and Keane JJ it was said:

    “[33] The “satisfaction” required to found a valid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act is a state of mind. It is a state of mind which must be formed reasonably and on a correct understanding of the law. Equally, it is a state of mind which must be untainted by a material breach of any other express or implied condition of the valid exercise of that decision-making power. The imperative duty imposed on a registered provider by s 19 of the ESOS Act is such a condition.”

    (Footnote omitted)

14. It was later held that for the decision of the delegate to cancel the visa to be valid, it was a precondition for the exercise of the discretion that the delegate was of the requisite state of mind to do so, such state of mind having been formed reasonably and on a correct understanding and application of the effect of the law. [2]

    [2]        Shrestha v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 151 at [2]

15. At [18] – [29] inclusive of its reasons, the Tribunal considered the following matters, namely that:

    a)On 25 February 2019, the applicant was arrested and charged with having committed the criminal offence of rape on 18 March 2018, and additionally, two (2) counts of the criminal offence of sexual assault on 19 March 2018. The applicant was later fined on 18 April 2019 for a breach of his bail conditions.

    b)The applicant’s evidence at the hearing was unpersuasive, vague and unreliable.

    c)Medical evidence provided to the Tribunal by the applicant indicated that the young Korean female student who had laid the complaints against the applicant had suffered some injuries consistent with sexual activity.

    d)The applicant had provided the Tribunal with transcripts of parts of some recordings made by the applicant in the company of the complainant.

    e)The applicant had said that sexual contact between him and the complainant was consensual.

    f)The applicant had denied all of the allegations made by the complainant.

    g)The applicant’s failure to provide a transcript of only some of the recordings prevented the Tribunal from considering all of the recorded evidence in its proper context, and that in doing so, the applicant had withheld evidence from the Tribunal.

    h)The applicant had accused the complainant of making everything up, saying that in South Korea there were penalties for the making of false accusations – such assertion having been countered by the Tribunal by it indicating that the making of a false complaint in Australia could also give rise to criminal charges.

    i)The applicant was indifferent to the complainant, and that his behaviour in recording conversations between him and the complainant, at a time when the complainant was distressed and intoxicated, was not such that the applicant’s behaviour toward women did not constitute a future risk to women.

    j)The applicant was not prepared to provide the Tribunal or anyone else with a full transcript of all of the recordings of conversations between him and the complainant, his saying that if he did so such transcripts would not describe the facts as he saw them.

    k)The Tribunal acknowledged that it was not required to consider whether the applicant was guilty or innocent of the charges laid against him, “only whether the charges exist”.

16. At [31] of its reasons, the Tribunal recorded that it had had regard to the mandatory policy guidelines as set out in the Department’s Procedures Advice Manual (PAM 3).

17. At [33] of its reasons, it was recorded that the applicant had not told his family that the allegations had been made against him. At [34] – [37] of its reasons, the Tribunal considered matters which might go to questions of hardship should the applicant’s visa be cancelled. It was noted that the applicant’s relationship with a woman at the time of the decision had only been of short duration, the Tribunal recording that such woman admitted that she and the applicant had only registered their relationship in order to improve the prospects of a migration outcome. The likelihood that the applicant’s recent employment would be terminated if his visa was cancelled was not considered as constituting such hardship as would influence the Tribunal to not decide to cancel the visa.

18. At [41] of its reasons, the Tribunal recorded that the complainant had said to the police that the recordings involved the applicant trying to persuade her to confess to the sexual relations being consensual.

19. The parts of the transcripts which the applicant had arranged to be produced appear at CB pp. 46 – 47. It is noted that those three (3) transcripts formed only part of the total of the five (5) audio recordings made by the applicant.

20. On 25 October 2019, the applicant filed an Originating Application for review of the decision of the Tribunal. The grounds of such application relied upon at the hearing before the Court were as follows:

    “Grounds of application

    1. The Tribunal’s decision is affected by jurisdictional error because when finding that a ground for cancellation existed under s 116(1)(e)(i) of the Migration Act 1958 it relied upon findings that were illogical, legally unreasonable, or unsupported by any evidence:

    a. The Tribunal treated the fact that the complainant “felt it necessary to file a complaint against him [ie, the Applicant] for rape and sexual assault” as itself evidence that the Applicant had caused the complainant distress, when such an approach was illogical, legally unreasonable, or unsupported by any evidence.

    b. The Tribunal found or assumed that the prosecuting authorities were “confident” that the charges against the Applicant “would be made out” merely because “despite the alleged victims departure from Australia, the prosecution had proceeded to lay charges against him”, when such a finding or assumption was illogical, legally unreasonable, or unsupported by evidence.

    c. The Tribunal found or assumed that the fact that the Applicant “considered it necessary to record conversations with the victim” was “indicative that there was, at best, something inappropriate in his actions towards her”, when such a finding or assumption was illogical, legally unreasonable, or unsupported by evidence.

    2. The Tribunal’s decision is affected by jurisdictional error because when considering whether or not to exercise the discretion to cancel the Applicant’s visa under s 116(1) of the Migration Act 1958, the Tribunal failed to take into account relevant considerations:

    a. …

    b. The Tribunal failed to consider or to properly consider the Applicant’s written submissions dated 16 September 2019, whereby the Applicant (visa his migration agent) contended that the Director of Public Prosecutions had made an offer to withdraw the charge of rape; the Applicant’s defence lawyer expected that a committal hearing may occur in November 2019; and that any consideration of cancellation of the Applicant’s visa could await the outcome of the committal hearing, because that hearing might lead to the discharge of the charges against the Applicant.

    3. The Tribunal’s decision is affected by jurisdictional error because when considering whether or not to exercise the discretion to cancel the Applicant’s visa under s 116(1) of the Migration Act 1958, the Tribunal impermissibly fettered that discretion:

    a. The Tribunal found that the Applicant’s relationship in Australia was not “a compelling reason” against cancelling his visa, thereby wrongly treating the discretion as one that ought to be exercised unless a “compelling reason” could be established.

    b. The Tribunal found that the Applicant did not have “a compelling need to travel to or remain in Australia such that the Tribunal would not cancel his visa”, thereby wrongly treating the discretion as one that ought to be exercised unless a “compelling need” could be established.

    4. The Tribunal’s decision is affected by jurisdictional error because its exercise of the discretion to cancel the Applicant’s visa under s 116(1) of the Migration Act 1958 was legally unreasonable:

    a. The Tribunal found that a number of factors were not a sufficient reason not to cancel the Applicant’s visa, and so those factors were objectively neutral.

    b. The Tribunal found that the fact “that the Department has not cancelled the applicant’s bridging visa and the Court has allowed him to live in the community under limited bail conditions” should be accorded “some weight in the applicant’s favour” (ie, some weight against cancelling the Applicant’s visa).

    c. Other than the ground that it found under s 116(1)(e)(i), the Tribunal did not identify any other factors that weighed in favour of exercising the discretion to cancel the Applicant’s visa.

    d. In that context, the Tribunal’s decision to cancel the Applicant’s visa lacks an evident and intelligible justification.”

Grounds of Application for Review

Ground 1

1. By this ground it was asserted that the Tribunal’s decision was affected by jurisdictional error because it made findings which were illogical, legally unreasonable or unsupported by any evidence.

2. It has been held that for illogicality or irrationality to be established it must be demonstrated that the decision making process in question evidenced extreme illogicality. In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] – [61] as follows:

   “[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

   52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

   …

   54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

   55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

   56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

   [61] For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).”

1. The applicant’s first complaint related to [25] of the Tribunal’s reasons where it was said – “He was dismissive of the alleged victim’s statements and unrepentant over the distress he appeared to have caused her, such that she felt it necessary to file a complaint against him for rape and sexual assault”.  This complaint is without merit. The passage referred to above was not a reflection of the Tribunal’s view of the applicant, but rather a recording of how the actions of the applicant had caused the complainant to file a complaint against him. There was no relevant reasoning of the Tribunal which was there either irrational or illogical.

2. The applicant’s second complaint related to [27] of the Tribunal’s reasons where it was asserted that the Tribunal “ … found or assumed that the prosecuting authorities were “confident” that the charges against the applicant “would be made out”.” There is no force to such submission. The Tribunal was there putting propositions to the applicant. It was testing aspects of the applicant’s evidence, as it was entitled to do. It has been found that the robust and forthright testing of claims and evidence does not justify a finding of apprehended bias. As was said in NADH of 2001 v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [19]:

   “[19] Third, the place of a decision-maker such as the tribunal here should be recognised as different from a judge in open court: Jia at CLR 563–4; ALR 465; Laws at 70–1; ALR 435–6; Ebner at CLR 343–4; ALR 646–7. The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.”

3. The Tribunal was not prejudging the issues before it. There is no merit to such claim.

4. The applicant’s third complaint related to [28] of the Tribunal’s reasons, where it was said:

   “[28] The applicant’s indifference to the alleged victim and his behaviour, including the recording of conversations with her when she was distressed and intoxicated do not give the Tribunal confidence that the applicant’s behaviour towards women does not constitute a future risk. The fact that he considered it necessary to record conversations with the victim whereby he allegedly claims that she admits to consensual sex is indicative that there was, at best, something inappropriate in his actions towards her. Even so, he has not provided the Tribunal or anyone else with a full transcript of all the recorded conversations, admitting himself that they would not describe the facts as he saw them.”

5. It was asserted that the Tribunal’s state of satisfaction of mind when cancelling the visa was not formed logically and rationally because  the Tribunal found that the fact that the applicant considered it necessary to record conversations was indicative that there was something inappropriate in his actions toward the complainant. There is no force to such submission. The Tribunal was entitled to have regard to the actions of the applicant in making the audio recordings, the timing of the making of such recordings, and his motive for doing so, when arriving at its decision. The applicant was asked about his reasons for doing so as recorded at [23] of the Tribunal’s reasons. The Tribunal was entitled to form a view about whether the applicant’s conduct was inappropriate or not, based upon all of the evidence that went to the circumstances surrounding the making of the recordings and the laying of the criminal complaints. At [41], the Tribunal noted that the complainant had said to the police that the making of the recordings was an attempt by the applicant to get her to admit that the sex was consensual. Again, the applicant’s complaints were unfounded. When combined with other aspects of the evidence before the Tribunal, including the applicant’s unpersuasive, vague and unreliable evidence, the Tribunal was entitled to make the finding it did. Such finding was not an example of extreme illogicality.

6. It cannot be said that the decision of the Tribunal was legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

7. Further, it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

   “[130] In the context of the Tribunal's decision here, "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.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

Ground 2(b)

1. This ground had no factual basis. There was no supporting evidence from the DPP that it had offered to withdraw the rape charge. Nor was the Tribunal bound to wait for the outcome of any committal proceedings before it made its decision, a proposition which is well recognised.

2. A decision maker such as the Tribunal can only act upon the clear evidence before it when arriving at its conclusions. It is only required to address articulated claims which are soundly based upon a fact or facts before the Tribunal. A Tribunal is only required to consider articulated argument and claims which clearly emerged from the evidence. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:

   “[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

   ·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

   ·The Tribunal is only required to consider such claims where they are either:

   (a) the subject of substantial clearly articulated argument, relying on established facts; or

   (b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).

   ·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

   … A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

   (Emphasis added.)

   ·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

   (a) such a finding is not to be made lightly (NABE at [68]);

   (b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

   (c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

   37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

   38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

   (d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and

   (e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”

3. This ground is speculative, and is a reflection of the applicant’s disagreement with the decision as made by the Tribunal. It invites a merits review which is not allowed. It is without merit.

Ground 3

1. This ground related to an assertion that the Tribunal fettered the exercise of its discretion by finding that the short term relationship between the applicant and his girlfriend, as at the time of the decision, would be broken up if the visa was cancelled, and that that did not give rise to a compelling reason for not cancelling the visa. There is no force to such claim, particularly in circumstances where the girlfriend was recorded as having admitted that she and the applicant had only registered their relationship so as to improve their visa application prospects. It was up to the Tribunal to consider what matters were relevant for the purpose of the exercise of its discretion and it was entitled to make the finding at [34] and [35] as it did. [3] There is no merit to this ground.

   [3]        Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003)

Ground 4

1. This ground asserted that the Tribunal fell into jurisdictional error because the exercise of its discretion to cancel the visa was legally unreasonable. There is no force to such argument.

2. At [31] – [42] of its reasons, the Tribunal appropriately considered the matters which it was required to take into account in the exercise of its discretion. It referred to PAM 3 policy guidelines, and to the fact that there were no criteria specified in the Act as to how the relevant discretion was to be exercised. At [43], the Tribunal found that having considered the evidence as a whole, it should exercise its discretion so as to affirm the decision of the delegate. There was clearly an evident and intelligible justification for such decision. The Tribunal acted reasonably in arriving at such decision.

3. It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:

   “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

4. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

5. The application for review is without merit and is dismissed.

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

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 12 May 2020

         per Kiefel CJ, Gageler and Keane JJ. 236 FCR 593 at [46] – [47] per French, Sackville and Healy JJ.