Federal Court of Australia
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCAFC 166
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 1810
VID 83 of 2021
MCKERRACHER, GRIFFITHS AND BROMWICH JJ
Date of judgment:
MIGRATION – Administrative Appeals Tribunal affirmed decision not to revoke visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – amended notice of appeal raised two grounds not run before primary judge – ground 2 a “no evidence” ground – where appellant failed to produce transcript of Tribunal hearing in Court Book – held: leave granted to raise ground 1 but not ground 2
MIGRATION – whether Tribunal’s fact finding irrational or illogical – where Tribunal made adverse credibility findings against appellant and stated it would only accept claims corroborated by evidence – findings of fact reasonably open – alleged errors not material – potentially discretionary considerations against relief – held: appeal dismissed
Hands v Minister for Immigrations and Border Protection  FCAFC 225; 267 FCR 628
Minister for Immigration and Border Protection v MZZMX  FCAFC 175; 280 FCR 1
Minister for Immigration and Citizenship v SZMDS  HCA 16; 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu  HCA 21; 197 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19  FCAFC 153
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham  HCA 1; 168 ALR 407
SZOOR v Minister for Immigration and Citizenship  FCAFC 58; 202 FCR 1
SZQBN v Minister for Immigration and Citizenship  FCAFC; 213 FCR 297
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCAFC 144; 278 FCR 386
New South Wales
National Practice Area:
Administrative and Constitutional Law and Human Rights
Number of paragraphs:
Date of last submissions:
25 August 2021
17 August 2021
Counsel for the Appellant:
Dr J Donnelly
Solicitor for the Appellant:
Counsel for the Respondents:
Mr AF Solomon-Bridge
Solicitor for the Respondents:
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The appellant have leave to rely upon ground 1 of the proposed amended notice of appeal.
2. Leave is not granted for the appellant to rely upon ground 2 of the proposed amended notice of appeal.
3. The appeal be dismissed.
4. The appellant pay the first respondent’s costs, as agreed or taxed.
MCKERRACHER AND GRIFFITHS JJ:
1 This is an appeal from orders and a judgment which is reported as QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 1810. The primary judge dismissed the now appellant’s application for judicial review of a decision by the Administrative Appeals Tribunal, which affirmed a decision of the Minister’s delegate not to revoke the mandatory cancellation of the appellant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
2 When the original notice of appeal was filed, the appellant represented himself. Subsequently, he was provided legal assistance by both counsel and a solicitor. This led to the appellant proposing an amended notice of appeal dated 30 July 2021, the two grounds of which are very different from those in the original notice of appeal. The appellant required leave to rely upon the amended notice of appeal because it raised grounds which were not run below. The Minister opposed leave being granted.
3 We consider that the appellant should have leave to rely upon ground 1 of the amended notice of appeal but not ground 2. Before explaining these matters, it is convenient to summarise the background facts and set out the two proposed grounds of appeal.
Summary of background facts
4 The appellant is a citizen of Burkina Faso, in western Africa. After arriving in Australia in 1997, he unsuccessfully applied for a protection visa. He left Australia in 2001 and did not return until December 2011. He was granted a Class BC Subclass 100 (Partner) visa, based upon his marriage to an Australian citizen. In 2013, he was convicted of importing a marketable quantity of a border controlled drug, namely cocaine. He was given a ten year prison sentence with a non-parole period of seven years. His appeal against the conviction was dismissed and his original sentence affirmed by the Victorian Court of Appeal in 2014.
5 On 8 November 2017, the appellant’s visa was cancelled by the Minister’s delegate acting under s 501(3A) of the Act on the basis that he failed the character test and had been sentenced to a term of imprisonment exceeding 12 months. The appellant unsuccessfully sought to have the cancellation decision revoked. There were various proceedings in relation to this decision in both the Tribunal and in the Federal Court. The first AAT decision is dated 16 April 2019. That decision was ultimately set aside. The second AAT decision, which is dated 9 July 2020, is the decision which was the subject of the judicial review application which ultimately gives rise to the present appeal.
6 After a two day hearing in the Tribunal on 10 and 11 June 2020, the second AAT decision affirmed the delegate’s decision not to revoke the visa cancellation. The Tribunal’s reasons for decision are comprehensive and total 93 pages. In affirming the delegate’s decision, the Tribunal proceeded on the basis (correctly) that it was bound to apply the Minister’s Direction under s 499 of the Act entitled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of visa under s 501CA” (Direction 79).
7 It is unnecessary to summarise all the Tribunal’s reasons for affirming the delegate’s decision. It is notable, however, that there were significant concerns expressed about the appellant’s evidence and credibility, as is reflected in the following extracts from - of the Tribunal’s reasons for decision:
103. QYFM conceded that key features of his previous evidence are false, incomplete or otherwise deficient, but frequently engaged in blame-shifting, including by repeatedly blaming his former lawyer for fabricating evidence without his knowledge, or unnamed fellow prisoners for filling in documents without his instructions, which he did not check before submitting. QYFM often dissembled and obfuscated when responding to questions contradicting his claims, including in respect of past claims he maintained for years.
104. The Tribunal considers QYFM is an unsatisfactory witness and revisionist historian. Key aspects of his evidence are false, inconsistent, exaggerated, implausible or incomplete. This conclusion is not made lightly and arises not from objectively minor matters of fact or QYFM’s demeanour, but on substantial evidentiary aspects. …
8 The Tribunal then provided in  no less than 18 examples to support its adverse credibility findings. These examples range from the provision of false character references to stark contradictions and inconsistencies in critical elements of the appellant’s previous claims to fear harm of persecution in his country of origin. This included his claim to have been a head chef at a particular restaurant between 2000 and 2005, which contradicted the incontrovertible evidence that he was not even in Australia from 2001 to 2011.
9 In the light of what the Tribunal described as the “inconsistent and reliable nature of key aspects of QYFM’s evidence”, the Tribunal made the following important statements and findings at  of its reasons, which the appellant contends are a source of various claimed illogicalities or unreasonableness in the Tribunal’s subsequent reasoning. It is desirable to set out  in full:
Such was the inconsistent and unreliable nature of key aspects of QYFM’s evidence, that the Tribunal has decided to treat all his evidence with caution. Only claims that are specifically corroborated by other reliable evidence will be given weight.
10 The Tribunal summarised its adverse credit findings at :
For the reasons adduced earlier, key aspects of QYFM’s evidence are either false, inconsistent, exaggerated, implausible or incomplete. He frequently attempted to blame evidentiary deficiencies on others. QYFM’s current claims often rested on bare assertion, including when he presented a new narrative for the circumstances of his departure from Burkina Faso, and dispensed with the family massacre narrative he consistently maintained between 1997 and 2000. He implausibly asked the Tribunal to believe that the family massacre narrative and having to desert his wife and two children in Burkina Faso, were invented by his lawyers or arose from language issues, mistranslation, or his ‘mental health’ (sic). He now attributes his trauma to a ‘capture and torture’ narrative similarly containing unexplained inconsistencies.
11 As noted above, the Tribunal structured its reasons with reference to the matters set out in Direction 79. Accordingly, the Tribunal recorded its reasons in respect of each of the primary and other considerations which decision-makers (apart from the Minister) are obliged to take into account in considering whether or not to revoke a visa cancellation. As is well known, the primary considerations are:
(a) protection of the Australian community from criminal or other serious conduct;
(b) the best interests of minor children in Australia; and
(c) expectations of the Australian community.
12 The other considerations include:
(a) international non-refoulement obligations;
(b) strength, nature and duration of ties;
(c) impact on Australian business interests;
(d) impact on victims; and
(e) extent of impediments if removed.
13 A substantial part of ground 1 of the appeal asserts that the Tribunal fell into jurisdictional error in its consideration and findings regarding the subject matter of paragraph (e). Clause 14.5(1) of Direction 79 directed the decision-maker to address:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
14 Because of their importance to ground 1 of the amended notice of appeal, it is desirable to set out in full the Tribunal’s findings in  of its reasons for decision relating to the topic of “Extent of impediments if removed”, noting in particular sub-paragraph (f) thereof which provides the foundation for a large part of the appellant’s complaints of illogicality and unreasonableness under ground 1:
The Tribunal finds that:
(a) QYFM is almost 44 years of age and there is no independent expert evidence to corroborate that he currently suffers any diagnosed physical or psychological condition, or symptomology as the result of traumatic experiences prior to departing Burkina Faso. The Tribunal accepts QYFM’s oral evidence, repeated on several occasions at the present hearing that he aspires to an immediate return to remunerative work if released, and there is no medical impediment to that aspiration;
(b) There is no persuasive cultural or language impediment to QYFM’s repatriation. The Tribunal was unconvinced by his claim that he could no longer speak his native languages, which came across as exaggerated at best. That follows from the fact he was born, raised and educated in Burkina Faso, lived there until he was a young adult, and the evidence discloses frequent references to him requiring the services of a French interpreter in the years after arriving in Australia. The evidence of his support person is that QYFM spoke French, with English as his second language. QYFM’s evidence is that he still communicates with his mother in Burkina Faso on the telephone, who only speaks French. Moreover, QYFM has demonstrated an ability to adapt to multiple cultures and international environments after leaving Burkina Faso as an adult, having lived in South Africa, Australia, Indonesia, Nigeria, Papua New Guinea, and the Middle East. In this context, even if his French language skills have degraded over the years, this is not considered a significant impediment to repatriation;
(c) There are significant inconsistencies in QYFM’s evidence about what family he has in Burkina Faso. As previously discussed, he consistently claimed between 1997 and 2000 that he discovered the murdered bodies of his parents, brother and sister after they suffered “violent deaths” at the hands of Burkina Faso authorities. In his 2017 PCF, QYFM claimed his three siblings lived in Burkina Faso. In his March 2019 statement, QYFM claimed his siblings ‘left Burkina Faso a long time ago to find life elsewhere around the world.’ In his current oral evidence QYFM claimed that two siblings live in Burkina Faso and a third lives between Burkina Faso and Ghana. He now submits that his father passed away in 1995 and his mother lives in Burkina Faso but moves between Burkina Faso and Ghana. Despite QYFM’s claims to the contrary, there is no persuasive evidence that he would be isolated or could not count on some emotional or practical support from his family members if repatriated. On his own evidence he has been in relatively recent contact with his mother, and she provided him with a letter of support and an extract of his father’s death certificate;
(d) There is no evidence that QYFM could not access medical treatment if he required it in Burkina Faso, although it can be accepted the quality of available care would likely be well below that available in Australia;
(e) QYFM’s claim that his family would be ‘devastated’ if he were repatriated, is not corroborated by evidence from family members in Australia. There is no persuasive evidence that the family reunification he relies upon is even desired by his family members in Australia. The letter from his eldest child only speaks in aspirational terms about the potential for a closer relationship with the three younger children. There is no evidence that his mother-in-law and children in Australia are in any way dependant on QYFM’s support or share his aspiration to resume a prominent role in their lives. QYFM’s claims in this regard came across as exaggerated at best; and
(f) The unpredictable nature of life in Burkina Faso, as disclosed by its history and recent development, is likely to result in considerable challenges for QYFM in re-establishing himself. The Tribunal accepts Burkina Faso is a poor country. But with a relatively low unemployment rate of approximately 6.4%, and with the English language skills and course qualifications gained by QYFM in Australia, there is nothing to suggest he could not competitively apply for work. QYFM relies on these new qualifications as underlying his claims about realistic prospects of work in Australia. There is no evidence they could not similarly assist him to find work in Burkina Faso or a third country. If he needed it, there is no evidence QYFM would not have access to whatever social supports are available to other citizens in Burkina Faso. That is likely to be far below what is available to him in Australia. There is also no evidence he could not choose to live elsewhere overseas as he did between 2001 and 2011.
15 The Tribunal’s ultimate conclusion regarding the extent of the impediments the appellant would face if removed to his country of origin are stated at  of its reasons for decision (emphasis added):
Putting all the evidence in the balance, repatriation to Burkina Faso nevertheless poses considerable challenges for QYFM in re-establishing himself and being able to provide for his daily needs. This consideration weighs substantially in favour of revocation.
Proposed amended notice of appeal
16 The two grounds of appeal raised in the proposed amended notice of appeal (without alteration) are as follows:
1. The decision of the second respondent (Tribunal) was illogical, irrational and/or legally unreasonable.
(a) First, at , the Tribunal (T) concluded that the appellant (A) was an unsatisfactory witness and revisionist historian. At , the T concluded that only claims and evidence advanced by the A that are specifically corroborated by other reliable evidence would be given weight.
(b) Secondly, at , the A’s evidence was that he is currently in dispute with his wife after refusing to sign a form authorising some of his children to reside with her overseas (dispute with wife claim). Having regard to that evidence, the T found that little weight can be placed on the A’s aspiration to resume a positive paternal role in the lives of his children immediately upon release.
(c) Thirdly, the T’s finding at  is illogical and/or irrational, given the T’s finding at . At , the T provided no reasons that the A’s dispute with wife claim was specifically corroborated by other reliable evidence. Thus, it was illogical or irrational to hold the A’s dispute with wife claim against him when it otherwise held that it would not accept his evidence unless it were specifically corroborated by other reliable evidence.
(a) First, at (a), the T accepted the A’s oral evidence, that he aspires to an immediate return to remunerative work if released (future work claim). That finding is illogical and/or irrational given the T’s earlier findings at -.
(b) Secondly, at (a), the T did not explain what specific corroborative reliable evidence it relied upon to make the future work claim (keeping in mind the T’s findings at -).
(a) At (f), the T concluded, inter alia, with the A’s English language skills and course qualifications gained by the A in Australia, there is nothing to suggest he could not competitively apply for work in his home country. This finding is illogical and/or irrational.
(b) First, there was material before the T that demonstrated the official languages of Burkina Faso are French, Mòoré, Fula, and Dioula. The material also showed that Burkina Faso was a landlocked country in West Africa, was a francophone country, and about 80% of the population is engaged in subsistence farming and cotton.
(c) Secondly, there was no evidence that English was widely spoken in Burkina Faso.
(d) Thirdly, given (b)-(c) above, there is no logical or rational connection between the A’s English language skills and employment prospects in Burkina Faso.
(e) Fourthly, the T’s finding at (f) presupposes that the A’s English course qualifications gained in Australia would be recognised in Burkina Faso. However, there was no probative evidence before the T to that effect. As such, it was illogical and/or irrational to conclude that the A’s Australian course qualifications would make him competitive for work in Burkina Faso.
(a) At (f), the T concluded there is no evidence that that the A’s new qualifications could not similarly assist him in finding work in a third country. This finding is illogical and/or irrational.
(b) First, there is no evidence that the A’s Australian qualifications would be recognised in a third country.
(c) Secondly, in any event, cl 14.5(1) of Direction 79 (the Direction) requires decision-makers to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country. As such, the Tribunal’s reference to a ‘third country’ has no logical or rational connection with cl 14.5(1) of the Direction.
(a) At (f), the T concluded there is no evidence the A could not choose to live elsewhere overseas as he did between 2001 and 2011. That finding is legally unreasonable, illogical and/or irrational.
(b) First, there was no probative evidence that the A would be able to live in other countries around the world (independent of Burkina Faso). Further, given the T’s findings at -, the T did not explain what specific corroborative reliable evidence it relied upon to find that the A had lived in third countries overseas between 2001 and 2011: , , (b), .
(c) Secondly, the T made various findings that could logically and rationally impact the A’s prospects of living in a third country. The A gained a very serious criminal history (, , ) in Australia in 2012 after importing drugs: -. The T noted the A had a criminal history in PNG: (j). The T found that the A was a ‘real risk’ of reoffending if released: , . The T rejected the A’s claim that he held various passports, finding that the A has only ever held a Burkina Faso passport since leaving Burkina Faso: . Both individually and/or collectively, these matters could rationally impact the A’s ability to reside in a third country.
2. The T made findings for which there was no probative evidence.
(a) First, at (c) and , the T concluded that there is no persuasive evidence that the A would be isolated or could not count on some emotional or practical support from his family members if repatriated.
(b) Secondly, there was no probative evidence that the A would have some emotional or practical support from his family members in Burkina Faso. That purported finding was based on nothing more than speculation, without a probative basis.
(c) Thirdly, given the T’s findings at -, the T did not otherwise explain what specific reliable corroborative evidence it relied upon to find that the A would not be isolated and have some emotional or practical support from his family members in Burkina Faso.
(a) First, at (f), the T concluded that if the A needed it, there is no evidence the A would not have access to whatever social supports are available to other citizens in Burkina Faso. This finding assumes:
• Burkina Faso has a social support system (i.e. welfare system).
• The A would have access to that social support system if he needed it.
(b) Secondly, the T’s finding here is based on a false premise; Burkina Faso has some social welfare system. There was no probative evidence before the T to support the impugned finding.
(c) Thirdly, without actually having probative evidence that a social support system was available in Burkina Faso, the T fell into error in finding the A could access the system if ‘needed’.
The parties’ submissions
17 Rather than add unduly to the length of these reasons for judgment, we will not summarise the parties’ respective submissions. We will endeavour to respond to the appellant’s primary submissions in our reasons below, which substantially reflect the Minister’s submissions.
Consideration and determination
(a) Should the appellant have leave to rely upon the proposed grounds of appeal?
18 The sole basis for the Minister’s objection to the grant of leave is that both proposed grounds and their respective “strands” or particulars allege an absence of evidence in respect of Tribunal findings. The Minister added that, notwithstanding that his solicitors had repeatedly told the appellant prior to the hearing that these grounds required him to adduce all the evidence which was before the Tribunal, he had failed to do so. More particularly, he had not adduced in evidence a copy of the transcript of the two day hearing in the Tribunal on 10 and 11 June 2020.
19 We consider that the Minister’s objection should be upheld in respect of proposed ground 2, for the reasons advanced by the Minister. Proposed ground 2 turns entirely on claims of “no evidence”, yet the evidence before the Court on appeal did not include all the evidence. In particular, the appellant failed to obtain and put into evidence a copy of the Tribunal transcript, which must have contained oral evidence. Absent such material, the appellant would not be able to discharge his onus of establishing that there was no probative evidence at all to support some of the Tribunal’s findings.
20 We consider, however, that the appellant should have leave to rely upon proposed ground 1. In our view, the various elements of this ground are capable of resolution by reference to the Tribunal’s reasoning and the material which was before the Tribunal and is included in the Court Book. Resolution of those matters is not precluded by the appellant’s failure to provide to the Court a copy of the Tribunal transcript.
(b) Why ground 1 is rejected
21 Proposed ground 1 alleges that the Tribunal’s decision was illogical, irrational and/or legally unreasonable. These complaints relate to the Tribunal’s fact finding as opposed to the exercise of a discretion. We accept the Minister’s submission that the alleged errors are properly analysed through illogicality/irrationality principles, and not through the application of unreasonableness principles: SZOOR v Minister for Immigration and Citizenship  FCAFC 58; 202 FCR 1 at  per McKerracher J (with whom Reeves J relevantly agreed).
22 The following principles concerning judicial review were identified by the Full Court (Murphy, O’Callaghan and Anastassiou JJ) in Minister for Immigration and Border Protection v MZZMX  FCAFC 175; 280 FCR 1 at -:
23 A finding of illogicality or irrationality requires the court to find that the Tribunal’s decision was one at which no rational or logical decision-maker could have arrived on the same evidence: SZMDS at 657-658 .
24 As the Full Court explained in ARG15 v Minister for Immigration and Border Protection  FCAFC 174; 250 FCR 109 at  (Griffiths, Perry and Bromwich JJ):
... for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “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 against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT  FCA 317; 212 FCR 99 ... at  per Robertson J; SZOOR v Minister for Immigration and Citizenship  FCAFC 58; 202 FCR 1 ... at  per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN  FCA 516 at  per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result ...
25 In DCP16 v Minister for Immigration and Border Protection  FCAFC 91 at –, primarily by reference to the High Court’s decision in SZMDS, the Full Court (Beach, O’Callaghan and Anastassiou JJ) said:
Differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at  per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at  per Crennan and Bell JJ). As their Honours said at :
The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Moreover, at  their Honours continued:
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.
23 Strand 1 relates to the Tribunal’s reasons at  and the Tribunal having had regard to the appellant’s evidence that he was currently in dispute with his wife after refusing to sign a form authorising some of his children to reside with her overseas. In the light of that evidence, the Tribunal said that it placed little weight on the appellant’s expressed aspiration to resume a positive paternal role in his children’s lives immediately upon release.
24 The appellant claims that it was irrational of the Tribunal to rely upon his statement against a background of the Tribunal having earlier stated that, given its credibility concerns, only claims that were specifically corroborated by other reliable evidence would be given weight. This contention, based upon the Tribunal’s statements at  regarding the need for corroboration of the appellant’s claims was repeated by the appellant in respect of other “strands” of ground 1.
25 We accept the Minister’s submission that the appellant’s contention should fail for the following reasons.
26 First, as a matter of characterisation — and keeping in mind that the Tribunal’s reasons are not to be read with an eye keenly attuned to error, let alone to be read as a statute — it is unlikely that the Tribunal meant in  that it would reject every part of the appellant’s evidence, no matter how inconsequential it might be unless it could be specifically corroborated and irrespective of whether the evidence was uncontroversial or plausible.
27 Secondly, the requirement for corroboration in  is expressed to apply to “claims”, as opposed to “evidence”. Those concepts are usually understood as distinct. The “evidence” that the appellant is currently in dispute with his wife would hardly be characterised as a “claim” in support of revocation. The terms of  are plain and involve an express distinction being drawn by the Tribunal between “claims” and “evidence”. We do not accept the appellant’s contention that the meaning of those terms is to be determined by reference to the fact that elsewhere in the Tribunal’s reasons the words are sometimes used interchangeably. True it is that the reasons need to be read as a whole but the task is one of reading the Tribunal’s reasons fairly and with regard to the language used, bearing in mind that this task is not akin to statutory construction.
28 Thirdly, we reject the appellant’s contention that the Tribunal’s reliance on his evidence of there being a marital dispute was irrational because it is inconsistent with the Tribunal’s more general expression as to the approach it would take to its fact finding. An inconsistency in reasons does not necessarily and of itself demonstrate an illogical finding of fact or any other error of law. As stated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS  HCA 16; 240 CLR 611 at , “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” (see also MZZMX at ). A logical or rational person could have relied upon the appellant’s own evidence of there being a marital dispute in making the finding at , regarding the appellant’s aspiration to resume a positive paternal role in the lives of his children immediately upon his release from immigration detention. Indeed, we consider that it is reasonably open to conclude on the basis of the material which is before the Court that a logical or reasonable person could have reached the same decision as the Tribunal did. If there was anything in the Tribunal transcript which is inconsistent with that statement, it was incumbent upon the appellant, who has the onus, to adduce that material in evidence but he failed to do so.
29 Fourthly, even if, contrary to the above, it was irrational of the Tribunal to reason as it did, we strongly doubt that such an error was material so as to constitute a jurisdictional error. The appellant claimed, in effect, that the Tribunal set a rod for its back by its declared approach to decision-making in . However, proceeding on that hypothesis, the Tribunal required the appellant’s claims to be “specifically corroborated by other reliable evidence” before it would give them weight.
30 The appellant’s “claim” in issue at  was that the family would reunite, and that his wife and mother-in-law would accept his playing an immediate paternal role. The only potentially relevant independent evidence referred to by the Tribunal in support of that claim was the evidence (in the form of a letter) of the eldest child about the “potential” for the appellant to have a closer relationship with the younger children. However, that is hardly evidence which is “specifically” corroborative of the overall claim (see also  of the Tribunal’s reasons for decision).
31 Therefore, even if the appellant is correct that the Tribunal could not rely upon his admission as to the dispute with his wife because of its declared approach at , that approach equally prohibited acceptance of the appellant’s claim referred to at  that there was a prospective and immediate family reunification, as it was not specifically corroborated by reliable evidence. It is therefore not realistically possible that the Tribunal would have accepted the “claim” of family reunification had it taken the approach now urged by the appellant, let alone that the overall revocation decision might have been different.
32 Fifthly, it is singularly unattractive for the appellant to argue that he is entitled to judicial review relief because the Tribunal should not have accepted his own evidence in circumstances where the Tribunal had made a finding that his evidence was unreliable on any material matter of fact. If, contrary to the above, we had accepted the appellant’s contention, a very real issue would have arisen as to whether relief would have been denied in the Court’s discretion (see SZQBN v Minister for Immigration and Citizenship  FCAFC; 213 FCR 297 at - per Jacobson, Edmonds and Logan JJ).
33 Finally, and importantly, it is apposite to set out what Gleeson CJ and McHugh J said in Minister for Immigration and Multicultural Affairs v Eshetu  HCA 21; 197 CLR 611 at :
… Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable”, or even “so unreasonable that no reasonable person could adopt it”. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.
34 Those observations, which we will refer to as the Eshetu observations, resonate strongly with the appellant’s claims with regard to ground 1 of the appeal, not only in respect of Strand 1 but also to the other strands of his claims of illogicality and unreasonableness.
35 Strand 2 complains of the Tribunal’s acceptance of the appellant’s evidence that he aspired immediately to return to remunerative work. We consider that this aspect of the appellant’s argument should be rejected for similar reasons to those given above in respect of Strand 1. In particular, it involves a mischaracterisation of the Tribunal’s reasons at , is inconsistent with the proposition that relying on a person’s admission against interest is inherently rational, is inconsistent with the Eshetu observations, and, in any event, would not attract relief on discretionary grounds.
36 In addition, we would also reject Strand 2 based on materiality considerations. The finding at [196(a)] concerning the appellant’s willingness to work was one of many factors that the Tribunal considered in assessing the extent of impediments the appellant might face if removed. Ultimately, it found repatriation to Burkina Faso posed “considerable challenges for [the appellant] in re-establishing himself and being able to provide for his daily needs” and that that consideration “weighs substantially in favour of revocation [of the cancellation decision]” (Tribunal’s reasons at ). The Tribunal’s assessment of this particular consideration was based on multiple factors. The alleged error affected only one element of that assessment. Moreover, the Tribunal’s ultimate conclusion on the extent of impediments if the appellant returned to Burkina Faso was in fact favourable to the appellant’s application for revocation of the cancellation decision. Accordingly, any error regarding the appellant’s evidence concerning his desire to work could not realistically have deprived him of the possibility of an overall successful outcome.
37 The appellant placed heavy reliance on the majority judgment in Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCAFC 144; 278 FCR 386. He cited the majority judgment in support of his claim that the errors raised by ground 1 of the appeal were material errors so as to involve jurisdictional error and also argued it supported his claims of no evidence under proposed ground 2. As leave is refused to raise proposed ground 2 it is sufficient to focus on the majority approach to materiality in Viane (noting that Besanko J dissented and also that the High Court has granted special leave to appeal, which appeal hearing was conducted in the High Court on 9 September 2021 and judgment has been reserved).
38 Viane is another case involving judicial review of a decision under s 501CA(4) not to revoke the mandatory cancellation of a person’s visa. The primary judge there dismissed the judicial review challenge. On appeal, the majority (Kerr and Charlesworth JJ) held that there was no probative evidence to support the Minister’s findings that:
(a) English was widely spoken in the two countries to which the appellant would be removed (accompanied by his family); and
(b) he and his family would be able to access health and welfare services there.
39 The majority held that the Minister’s errors were material and involved jurisdictional error because they were of a kind which led the Minister to give less weight to the interests of one of the appellant’s children than he might otherwise have done and so affected “a critical aspect” of the Minister’s reasoning. It is desirable to set out  and  of the majority’s reasons:
52 Given that Mr Viane could not pass the character test, the Minister’s task was to form a state of satisfaction or non-satisfaction as to whether there existed another reason to revoke the cancellation decision: s 501CA(4)(b). The task was an evaluative one in two respects: the Minister was required to decide questions of fact that arose on the materials and to assess the relative weight to be ascribed to the countervailing considerations: Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at - (Collier J, Logan and Murphy JJ agreeing). The ascription of weight to each consideration necessarily depended on the factual circumstances as the Minister had determined them to be. In the given statutory context, an error in a finding of fact (here facts relating to the social circumstances in a country) has the capacity to affect the weight given by the Minister to the particular consideration in question. Expressed in terms of the test for materiality stated in Hands, the weight to be ascribed to the hardship that would be suffered by child A should she relocate to Samoa or American Samoa was a critical step in the Minister’s ultimate conclusion as to whether there was another reason to revoke the cancellation decision. That conclusion is reinforced by the historical, factual and legal circumstances in which the Minister’s decision was made: Hossain at  (Kiefel CJ, Gageler and Keane JJ).
61 It has not been overlooked that the proposition that there were language differences as between Australia and Samoa or American Samoa was accepted by the Minister. The error affected the Minister’s assessment of the nature and extent of those differences and hence the extent to which they affected the interests of child A and otherwise presented an impediment to Mr Viane and his family. The error goes to a question of degree. So too does the error concerning the existence and quality of welfare services. In our view the errors are of a kind that lead the Minister to afford less weight to the interests of child A than he might otherwise have done and so affected a critical aspect of the Minister’s reasoning.
40 The Minister contended that Viane was distinguishable and, alternatively, that it should not be followed because it was plainly wrong. For the following reasons, we agree that it is distinguishable. Accordingly, it is unnecessary to address the Minister’s alternative contention other than to note that if we had been required to do so we would have given close attention to Allsop CJ’s recent judgment on this issue in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19  FCAFC 153.
41 In describing the Minister’s findings regarding language and access to health and welfare services as “a critical step in the Minister’s ultimate conclusion”, the majority in Viane emphasised that these findings related to what the Minister himself had described as a “primary consideration”, namely the interests of the appellant’s child (see in particular at -). The position is different here. We accept the Minister’s contention that the matters of which the appellant complains in  of the Tribunal’s reasons for decision are properly described as passing observations, and fall well short of being characterised as “a central and crucial consideration” or a “finding of fact that was critical to the assessment” (see Hands v Minister for Immigrations and Border Protection  FCAFC 225; 267 FCR 628 per Allsop CJ at  and ). They cannot be described as a critical step in the Tribunal’s path of reasoning. Moreover, as we have stated, the matters complained of in [196(f)] form but one part of a much broader assessment by the Tribunal in concluding, in the appellant’s favour, that his removal to Burkina Faso would present considerable challenges for him, such that this consideration was viewed as weighing “substantially in favour of revocation”.
42 Strand 3 complains of the Tribunal’s findings that, with the appellant’s English language skills and course qualifications in Australia, “there is nothing to suggest he could not competitively apply for work” and that, in relation to his qualifications specifically, “there is no evidence they could not similarly assist him to find work in Burkina Faso or a third country” (Tribunal’s reasons at [196(f)]).
43 In our view, it was reasonably open to the Tribunal to infer that good English language skills and Australian trade qualifications would help, not hinder, the appellant in searching for work in Burkina Faso. In any event, its findings were simply to the effect that there was nothing to suggest that those qualities would not assist him.
44 We consider that it is also important to note that the majority’s approach in Viane was influenced by their Honours’ specific factual finding that the appellant there had made express representations to the Minister in support of the requested revocation regarding both language difficulties for his daughter and the issue of the existence and quality of welfare services (see at ). In contrast, the appellant’s representations here raised issues regarding language barriers for him in Burkina Faso but, significantly, no representation was made which denied that his English competency and Australian trade qualifications would not be of assistance to him in obtaining employment in that country. Rather, the findings at [196(f)] appear to have been made with reference to the wording of cl 14.5(1) of Direction 79. Those findings were not made in response to any particular representation made by the appellant. The majority approach in Viane focuses attention squarely on the terms and character of the representations made by the affected person in any particular case.
45 In addition, we consider that this strand must also fail having regard to the Eshetu observations and also for lack of immateriality, as explained above.
46 Our reasons for rejecting Strand 3 also apply to this Strand. This Strand focuses upon the Tribunal’s reference to finding work in “Burkina Faso or a third country” (Tribunal’s reasons at [196(f)]). We reject this aspect of the appellant’s contentions on the basis that it mischaracterises the Tribunal’s finding, it was reasonably open to the Tribunal to make the finding which it did and also on the basis of lack of materiality.
47 The appellant additionally complained at  of his written submissions that it was not logical or rational for the Tribunal to consider the impediments he might face in any country other than his home country, having regard to cl 14.5.1 of Direction 79. This complaint is rejected for the following reasons. First, illogicality or irrationality grounds apply to the soundness of identified fact finding and not to whether that fact finding is legally relevant. Secondly, the disjunctive nature of the Tribunal’s finding at [196(f)] (i.e. referring to the prospects of the appellant finding work in either his country of origin or a third country) means that it sufficiently addressed Burkina Faso if that was the sole point of relevance. Accordingly, any error could not have been material. Thirdly, in any event, when the Tribunal came to consider the balance of considerations at , it squarely refocused its attention on the impediments which the appellant faced in repatriation to Burkina Faso and so any error in a preceding and tangential finding would not be material. Fourthly, it is not surprising that the Tribunal turned its mind to the appellant’s prospects of finding work in a third country having regard to his history of having lived in several countries before settling in Australia.
48 We consider that this aspect of the appellant’s case also attracts the Eshetu observations.
49 Strand 5 complains of the Tribunal’s finding that there is “no evidence [the appellant] could not choose to live elsewhere overseas as he did between 2001 and 2011” (Tribunal’s reasons at [196(f)]). We accept the Minister’s submissions as to why each of the four elements of this complaint should be rejected.
(a) A failure to “rationally explain the relevance” of the finding is not a competent irrationality/illogicality review ground.
(b) The appellant’s contention at  of his written submissions that there was “no probative evidence that [the appellant] would be able to live in other countries”, misstates the actual finding. That finding is that there was “no evidence” to suggest he “could not” choose to live elsewhere. Moreover, even if the Tribunal had made the stronger finding as now claimed by the appellant, we consider that it would have been reasonably open to the Tribunal to make such a finding in the light of the appellant’s previous peripatetic lifestyle, which was referred to at  of the Tribunal’s reasons.
(c) The appellant’s contention at  of his written submissions that the Tribunal failed to explain what specific corroborative evidence was relied upon is not an allegation of irrationality/illogicality but one of adequacy of reasons, which is not a jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham  HCA 1; 168 ALR 407 at - per McHugh J.
(d) It is not at all clear to us why the appellant’s convictions, or other matters referred to at  of the appellant’s written submissions would have compelled a rational decision-maker to make a different finding. Even if another decision-maker might have speculated that the appellant’s prospects of living in a third country might be materially diminished by those matters, it is not explained why no rational decision-maker could have made the findings that the Tribunal did.
(e) In any event, the appellant’s complaints would fail for lack of materiality, for similar reasons as those explained at  to  above.
(f) The Eshetu observations apply equally to this aspect of the appellant’s case.
50 For these reasons, we consider that the appellant should have leave to rely upon ground 1 of the proposed notice of appeal, but not ground 2. However, ground 1 should be dismissed. The appellant should pay the Minister’s costs.
REASONS FOR JUDGMENT
51 I agree with the orders proposed by McKerracher and Griffiths JJ, and with their Honours’ reasons.
52 I also need to address an application made on behalf of the appellant, seeking to have me recuse myself upon the basis of apprehended bias.
53 Immediately prior to the hearing of the appeal, I caused my associate to send to the parties an email advising that I had appeared for the prosecution in the appellant’s unsuccessful conviction appeal a number of years ago. By that email it was conveyed that I did not consider that this was a cause for apprehended bias because that appeal related to a pure legal question, but nonetheless I wished to raise it with the parties in order that any application for me to recuse myself could be made.
54 My appearance in the appellant’s unsuccessful conviction appeal occurred in my capacity as the Commonwealth Director of Public Prosecutions, a position I occupied until my appointment as a judge of this Court on 29 February 2016. It is a matter of public record that as Director, I appeared in a significant number of prosecution sentence appeals, a lesser number of defence appeals brought against conviction and sentence, and at two sentence hearings. My appearance at defence appeals was confined to cases that involved a point of principle of general importance.
55 One of the defence appeals that I appeared in was a conviction appeal brought by the present appellant, following a guilty verdict by a jury. The appeal point concerned the admissibility of a particular class of evidence. That particular issue of admissibility of evidence was, at least in that context, a topic which could safely be described as a pure legal point involving statutory construction. It is not necessary or desirable to provide further details as to the case, particularly in circumstances where I must endeavour to avoid revealing the appellant’s identity, noting that he was referred to in this appeal proceeding, in the Court below, and before the Administrative Appeals Tribunal by a pseudonym as required by s 91X of the Migration Act 1958 (Cth).
56 The limited issue raised by the appellant’s conviction appeal did not entail me having any regard to any aspect of the appellant’s conduct or conviction that did not directly relate to the admissibility of the evidence in question. Nor did it call on me to have regard to his sentence or his criminal record, nor anything else to do with him as an individual. I only noticed that I had appeared on his conviction appeal during the course of final preparation on the morning of this appeal hearing. The contents of the conviction appeal judgment did not feature in the appeal before this Court in any way, and was only included in the appeal book because it was part of the material that was before the Tribunal.
57 Soon after the commencement of the hearing of this appeal, counsel for the appellant, on instructions, applied to have me recuse myself from sitting on this appeal by reason of apprehended bias. Counsel relied upon the principles stated in Ebner v Official Trustee in Bankruptcy  HCA 63; 205 CLR 337 at  per Gleeson CJ, McHugh, Gummow and Hayne JJ, and in particular the statement that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.
58 Their Honours also observed:
(1) at :
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(2) At -:
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
59 The argument advanced by the appellant for recusal may be summarised as follows, relying upon the appeal hearing transcript of the submissions made by his counsel:
(1) I had been senior counsel who “defended” the appellant’s conviction directly in his appeal.
(2) I “obviously” had personal knowledge of the appellant’s criminal history and criminality independent of these proceedings.
(3) The current proceedings relate to a judicial review application by the appellant concerning the cancellation of his visa on character grounds.
(4) This appeal proceeding required the Court to carefully consider the Tribunal’s decision which includes the appellant’s criminal history.
(5) The nature of the appellant’s criminal offending would become relevant on the question of materiality if the Court was to find error with the decision-making process of the Tribunal.
(6) A reasonable-minded member of the public might reasonably apprehend that I will not bring an impartial and unprejudiced mind to the resolution of the questions in the appeal.
60 The Minister opposed the recusal application. The Minister pointed out that the parties had been aware that I was one of the members of this bench since 23 July 2021, and that the criminal appeal decision appeared in the appeal book. Further, there was no dispute that the appellant failed the character test in this appeal, and therefore there was no proper basis for an apprehension of bias.
61 I rejected the reasons proffered by the appellant as a proper basis for recusal, and declined to recuse myself, giving oral reasons at the time. The substance of those reasons are as follows, applying the substance of the principles stated in Ebner and reproduced above, to which I adhere, with some additional explanatory detail in brackets:
(1) I was not only senior counsel appearing at the appellant’s conviction appeal, but also the Director of Public Prosecutions at that time. As Director of Public Prosecutions, I only appeared in appeals such as the one in issue here on a point of principle, and not usually in relation to factual matters. In this case in particular, I had only a faint memory of the criminal appeal case in terms of any of its factual detail. My only reasonably clear memory of the case was because of the importance of the legal principle involved. (During this appeal hearing I outlined the legal principle involved in the appellant’s conviction appeal, which has no bearing on this appeal, and which I will refrain from repeating in these written reasons as it might tend to identify the appellant.)
(2) I had no knowledge whatsoever of the appellant’s criminal history arising from appearing on the appellant’s conviction appeal. The appellant’s criminal history was not relevant to his conviction appeal. Re-reading the criminal appeal judgment in the course of preparing for this appeal confirmed my lack of knowledge of the appellant’s criminal history, either at the time of the hearing of the conviction appeal or otherwise. The evidence admissibility question was my sole concern in the appellant’s criminal appeal.
(3) Accordingly, my knowledge of the appellant’s criminal appeal case, quite apart from the fact that it was a number of years ago, does not go beyond what is in the criminal appeal court judgment (which is in the appeal book and therefore before all three members of the present appeal bench). I therefore did not accept that I had knowledge of the appellant’s criminal history that was any greater than that of any other member of the appeal bench.
(4) There is no dispute that the appellant failed the character test and the materiality aspect advanced in his present appeal did not have anything to do with the knowledge that I acquired from appearing at the criminal appeal on a purely legal question.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.
Dated: 15 September 2021