FEDERAL COURT OF AUSTRALIA

DJS16 v Minister for Immigration and Border Protection [2019] FCA 254

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first appellant pay the first respondent’s costs, including reserved costs, to be fixed by way of a lump sum.

3.    On or before 13 March 2019, the parties are to file a joint note informing the Court whether or not agreement on costs (including reserved costs), and any lump sum figures as to costs, has been reached, including any proposed orders if agreement has been reached.

4.    In the absence of any agreement pursuant to the process in paragraph 3, the matter of an appropriate lump sum for the first respondent’s costs is to be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    This is an appeal from orders of the Federal Circuit Court made on 28 November 2017. By those orders, the Federal Circuit Court dismissed the appellants’ judicial review application in relation to a decision of the Administrative Appeals Tribunal made in October 2016, which affirmed the delegate’s decision to refuse to grant a protection visa to the appellants. The first and second appellants are mother and son. The son is approximately 12 years of age.

2    In December last year, after a somewhat drawn-out process, I made orders granting the appellants an extension of time in which to appeal from the orders of the Federal Circuit Court, and confining the leave granted to the five proposed arguments identified in the written submissions filed on behalf of the appellants on 18 September 2018: see DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037. Much of the background to the appeal is set out in those reasons, and I need not repeat it.

3    For the reasons set out below, the appeal will be dismissed. I accept that is a very difficult outcome for the appellants. It is no reflection on their circumstances (about which the Court makes no findings and expresses no views), but rather is a reflection of an answer to the legal question whether the Tribunal, in making its decision, acted within the law. That is the issue before this Court. In this proceeding, I have found the Tribunal’s conclusions were open to it, and were not illogical, irrational or legally unreasonable, even if not all Tribunal members might have reached the conclusions this Tribunal did.

4    The Court also extends its gratitude to senior and junior counsel, and to their instructor, all of whom the Court was informed appeared pro bono for the appellants. The appellants have been well-served by the legal representation they have received, and the Court has been much assisted.

Resolution of the appeal

5    Pursuant to the orders made in December last year, the appellants filed an amended notice of appeal on 10 January 2019. The grounds in that notice accurately reflect the grounds on which leave was granted, although they are expressed as a single ground, with five sub-paragraphs:

1.    The Federal Circuit Court erred by not finding the Tribunal’s decision was illogical, irrational or legally unreasonable, in relation to each of the following:

a.    First, the Tribunal’s finding that it was open to the Tribunal to find that the First Applicant’s evidence concerning her ex-husband’s contact with her son in Australia was contrived.

b.    Second, the Tribunal’s finding that the First Applicant’s ex-husband did not intend to abduct their son should the Applicants return to Malaysia.

c.    Third, the Tribunal’s conclusion that it was unable to make findings in relation to the claimed domestic violence.

d.    Fourth, the Tribunal’s finding that the First Applicant’s ex-husband was not seeking to change the (then) current custody arrangement in respect of their son.

e.    Fifth, the Tribunal’s finding that should the First Applicant’s ex-husband seek custody of their son, the relevant court in Malaysia would have regard to his welfare and the First Applicant would have a chance to put matters before the court.

6    Although in style this would appear to be one ground, upon asking senior counsel at the hearing of the appeal, it was clarified that each of these five matters is put in the alternative. That is, each instance of irrationality or legal unreasonableness is said to justify an order setting aside the Tribunal’s decision, and is said to be sufficiently material to do so. Accordingly, although styled as one ground of appeal, in these reasons, on the basis of the way the appeal was put to the Court by senior counsel, I have dealt with each of these five paragraphs as if they advanced independent grounds for setting aside the decision of the Tribunal.

7    As to the need for materiality in order to identify a jurisdictional error which supports orders setting aside or quashing a decision, see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 at [29]-[30] (Kiefel CJ, Gageler and Keane JJ), [39], [42] (Nettle J) and [72] (Edelman J).

8    The appellants’ grounds of appeal all focus on the identification of findings as part of the Tribunal’s reasoning process, which it is contended are so irrational, or legally unreasonable, as to amount to a failure of the Tribunal to exercise the jurisdiction conferred on it, and to justify this Court issuing relief in the nature of prerogative remedies to set aside the Tribunal’s decision.

9    As many authorities in this Court and in the High Court have recognised, the rationality and reasonableness grounds require scrutiny of a decision-maker’s approach to fact-finding, and careful consideration of a decision-maker’s reasoning process. This tends to draw a supervising Court closer to arguments about what was the correct or preferable outcome of a review, or what was the correct or preferable outcome of an exercise of power. As the authorities also recognise, a supervising Court must be careful not to become embroiled in those questions.

Applicable principles

10    The most pertinent authority on the contentions advanced by the appellants remains the reasons for judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, especially at [121]-[131]. Their Honours were, with Heydon J, in the majority on the appeal. At [130]-[131] their Honours said:

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.

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. 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.

11    It is also worth noting, in the context of this appeal, what was said by Heydon J at [78] and [86]:

The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.

…

The difference between the Federal Court and the Tribunal may be put thus. The Federal Court thought that the first respondent's explanation for not seeking asylum in the United Kingdom was “perfectly plausible”. There are pejorative meanings of the word “plausible”, but they are not the meanings which the Federal Court was conveying. The Federal Court was saying that the explanation was “capable of being believed” or “apparently believable”. The Tribunal, however, did not believe it. Something can be capable of being believed without actually being believed. For the Tribunal member to withhold belief from something which is “perfectly plausible” but which she did not find to have been satisfactorily explained and which she found not to be probable is not illogical.

12    The Minister referred to the decision of CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496, where the Full Court (at [60]) endorsed the observations of Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516. In particular, and properly, the Minister accepted what was said by Wigney J at [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].

13    The Minister submitted, and I agree, that each of the five matters identified on behalf of the appellants in the amended notice of appeal is a finding “along the way” to the Tribunal’s ultimate conclusion that it was not satisfied that Australia had protection obligations to the appellants, under either the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967), or on the basis of Australia’s complementary protection obligations under the CAT (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)) and the ICCPR (International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)).

14    More recently, in considering these kinds of arguments, especially in relation to credibility findings, in Republic of Nauru v WET040 [No 2] [2018] HCA 60; 362 ALR 235 the High Court identified the following kinds of benchmarks:

(a)    whether a conclusion of “implausibility” was a “bare assertion” (at [33]);

(b)    whether factual considerations identified by a decision-maker as reasons to reject a narrative or an account were nothing more than speculation or conjecture (at [29]);

(c)    whether an inference drawn by a decision-maker was a “rational inference” (at [28]); and

(d)    whether a conclusion was “unsupported by basic inconsistencies” (at [31]).

15    In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [57], Griffiths J also observed that the concept of proportionality may have a role to play in irrationality or legal unreasonableness. His Honour said, by reference to the plurality’s judgment in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332:

The concept of “unreasonableness” can accommodate individual heads of judicial review, including a “proportionality analysis by reference to the scope of the power” (at [73]). Thus, although the argument was not presented in this way in Li itself, the plurality stated that, if the Migration Review Tribunal gave “excessive weight” to the question whether the visa applicant had had an opportunity to present her case, “an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached (at [74]). It may be interpolated at this point that, in the recent decision in McCloy v New South Wales [2015] HCA 34 at [3], French CJ, Kiefel, Bell and Keane JJ described the term “proportionality” in Australian law as describing a class of criteria:

…to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done.

(Emphasis added.)

This may indicate that the concept of proportionality is an aspect of judicial review of administrative action.

(Original emphasis.)

16    One of the issues not yet well-developed in current Australian administrative law is how the concept of legal unreasonableness operates when the attack is not on an exercise of power. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [53], Gageler J said:

Whatever room might remain for argument about the most appropriate expression of the standard of legal reasonableness, however, the nature of legal unreasonableness should be taken to be settled by the explanation of it in Quin. The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power. The implication arises through operation of a common law presumption of statutory interpretation that a statutory power is conferred on condition that the power can be exercised only within those bounds. The presumption prevails to condition the exercise of the power on the repository complying with the standard of legal reasonableness absent statutory indication that the repository must meet some higher standard (an example of which is where the repository is restricted to exercising the power only on reasonable grounds) or will sufficiently comply with the statute by meeting some lower standard (an example of which is where the statute requires no more than that the repository exercise the power in good faith and for a purpose permitted by the statute). Where the presumption prevails so as to condition the exercise of the power on the repository complying with the standard of legal reasonableness, a decision made or action taken in purported exercise of a statutory power in breach of the standard of legal reasonableness is a decision or action which lies beyond the scope of the authority conferred by the power.

(Footnotes omitted.)

17    This description of the operation of legal unreasonableness, with which I respectfully agree, focuses on an exercise of statutory power. Thus, the concept sits comfortably with the circumstances in Li and in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, both of which concerned the statutory power of a Tribunal to adjourn a review from time to time. So too, the concept sits comfortably with an “outcome-focussed” analysis of an exercise of power such as the decision to cancel a visa: see Stretton at [21]-[22] (Allsop CJ), [62] (Griffiths J) and [92] (Wigney J).

18    So far as I am aware, at least at the level of the High Court or the Full Court of this Court, since Li the concept of legal unreasonableness has not been applied to individual aspects of the fact-finding of a decision-maker or a Tribunal in the way it is put in this appeal. Counsel for the Minister agreed this was the case. Of course, insofar as the two principal judgments in SZMDS refer to legal unreasonableness as well as irrationality or illogicality, it might be said to have occurred in that context, but since that judgment, the two kinds of jurisdictional error appear to have gone their separate ways somewhat. In this appeal, counsel for the Minister accepted there did not appear to be any decisions invoking legal unreasonableness in this kind of context, and referred to what was said by two members of the Full Court in Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; 255 FCR 486 at [36].

19    That being the state of the law as far as I can ascertain it, I have focussed more on the irrationality arguments, which sit comfortably within existing authorities.

General findings

Materiality

20    The Minister submits that grounds 1(a) and 1(d) of the amended notice of appeal both challenge the Tribunal’s fact-finding about whether the first appellant’s ex-husband will seek to change the (then) custody arrangements for the second appellant, which was a key claim on the review. The Minister submits that the challenge in ground 1(e) is to fact-finding by the Tribunal which was in the alternative to the fact-finding about the change of custody arrangements referred to in grounds 1(a) and 1(d). The Minister submits that, even if there is irrationality in either or both of the findings challenged by grounds 1(a) and 1(d), unless the appellant also succeeds in relation to ground 1(e), the Tribunal’s decision should not be set aside. According to the plurality in Hossain, this is not a matter of discretion as to relief, but a matter of whether or not there is jurisdictional error.

21    In a similar way, the Minister submits that if only one of the findings of fact identified in grounds 1(a) or 1(d) is found to be illogical or irrational, the same consequence would flow.

22    I accept the Minister’s submissions on this issue, although since I have not found any of the five matters fall within the legal description of irrationality or illogicality, this issue strictly does not arise.

The delegate’s finding regarding the truth of the first appellant’s accounts

23    It was a prominent feature of the appellants’ oral argument, as developed by senior counsel, that the delegate made a finding favourable to the appellant about the reliability of her accounts of what had occurred to her in the past. The delegate found:

I have also noted the supporting documents supplied by the applicant and accept that the applicant has spoken truthfully about her family situation when consulting the various professionals. I have also noted their recommendations regarding the applicant’s need for protection in Australia; however each case is assessed on its individual merits taking into account all available information and evidence.

24    From this finding, it was submitted that the Court could examine the history given by the first appellant to various professionals (which included a history of allegations of domestic violence and other mistreatment) and could use this history to evaluate the rationality of the Tribunal’s findings which are impugned on the appeal.

25    I do not accept the finding by the delegate has any relevance to the appellants’ challenges to the Tribunal’s fact-finding on this appeal. The Tribunal was entitled to reach different conclusions to those reached by the delegate about the reliability of accounts given by the first appellant. Indeed, that is the whole point of a review on the merits: a review applicant generally wishes to have different findings made on certain facts at least, otherwise there would be no reason for a review.

26    Further, the delegate’s findings about the reliability of the first appellant’s evidence were not all one way. Just above the finding on which the appellants relied was this finding:

The applicant made a number of claims regarding her ex-husband, including that he had the ability to manipulate court system. She also suggested that the high levels of corruption in Indonesia and Malaysia, and the relationship between the two countries would contribute to her being unable to receive a fair trial. While I accept that the applicant believes this to be true, there is no evidence that the applicant's ex-husband would wish to, or be able to exert pressure on the legal system in Malaysia. Thus, these claims are mere speculation.

27    There is no basis to find the Tribunal’s approach to the reliability of the first appellant’s accounts was irrational because the Tribunal did not rely on the truth of the history given by the first appellant to various professionals. These were judgments for the Tribunal to make.

First finding: whether screen shot evidence contrived

28    The appellants identify as the impugned finding what is said at [31] of the Tribunal’s reasons:

The Tribunal has had regard to this evidence which indicates that the applicant’s ex-husband visited [REDACTED] in 2014. However, the Tribunal has placed greater weight on the absence of any record in the Australian government data base of this claimed entry into Australia in 2014 and, in the absence of any record of his entry, finds that the applicant’s ex-husband did not visit [REDACTED] in 2014 as claimed. The Tribunal does not accept that the applicant’s ex-husband has the power or the inclination to erase his entry from the Australian government data base. Accordingly, the Tribunal finds that the screen shots, photograph and the IO application have been contrived in order to bolster the applicant’s claim that her ex-husband wants custody of [REDACTED].

29    The references to the visit in 2014, the “screen shots” and the records on the “Australian government data base” (also referred to as “movement records”) are explained earlier in the Tribunal’s reasons at [24]-[26], all of which was relevant to the appellants’ claims that the first appellant’s ex-husband was planning to abduct his son from Australia:

The applicant claims that her ex-husband came to Australia in August 2014 and sought contact with [REDACTED]. She claims that she was afraid he would abduct [REDACTED] so, on the advice of [REDACTED]’s school, obtained an Intervention Order (IO) on 15 August 2014 preventing her ex-husband from having any contact with [REDACTED] (f.357 of the Tribunal file) however the IO subsequently lapsed because it could not be served on her ex-husband.

The Tribunal searched the Department’s Movement Records and issued a summons to the Department for their Movement Records in order to confirm that the applicant’s ex-husband entered Australia in 2014. The Movement Records obtained by the Tribunal and provided by the Department show that his most recent entry into Australia was on 26 December 2010 and that he departed on 12 January 2011. When the Tribunal put to the applicant (pursuant to s.424AA of the Act) that there is no record of her ex-husband entering or departing Australia in August 2014, the applicant stated that she does not understand how this is the case and re-iterated that he visited [REDACTED]in 2014. She told the previous Tribunal that he may have travelled on a diplomatic passport however the Tribunal understands that entry on a diplomatic passport will still show up in the Movements Records data base. The applicant told the Tribunal that her husband may have used his intelligence contacts to have his entry and exit deleted from the Australian government data base.

The applicant provided screen shots of chats allegedly between herself and her ex-husband on 15 August 2014 making arrangements for his contact with [REDACTED] and a photo of [REDACTED] supposedly with his father in Geelong. The Tribunal raised the following concern about this evidence with the applicant. The applicant obtained the IO on 15 August at 11.45 then, despite the IO, apparently messaged her ex-husband at 2pm on the same day and asked him if he wanted to see [REDACTED] that day or the next day and then arranged for them to meet at the waterfront that night at 6pm. When the Tribunal queried why she obtained an IO then arranged for her ex-husband to meet [REDACTED], the applicant said that the IO was just to prevent her ex-husband from taking [REDACTED] out of school. The Tribunal noted that it prevents all contact. When asked why she did not tell the police her ex-husband would be at the waterfront that evening so they could serve the IO, the applicant said she didn’t think ahead and was traumatised and didn’t know her ex-husband’s motives.

30    The Tribunal was entitled to place weight on the absence of any record of the ex-husband’s visit in the Department’s movement records. As the Minister submitted, the last recorded entry of the ex-husband was in 2011, before the first appellant and he divorced. As the passages I have extracted above demonstrate, the Tribunal considered the explanations provided by the appellants for why the ex-husband’s entry did not appear on the movement records. Aside from these explanations, the appellants did not provide any other contention about why the Tribunal should find the movement records were unreliable or inaccurate. The Tribunal considered and rejected the two explanations proffered. It was entitled to do so.

31    During argument, it became apparent that the evidence revealed the application for an intervention order by the first appellant, to the Geelong Magistrates’ Court, contained a record of her statement (to, I infer, a police or court officer) that her ex-husband was in Australia on 13 and 14 August 2014. The Tribunal’s finding does result in a conclusion that the first appellant was not being truthful in her application for an intervention order, because her ex-husband was not in fact in Australia and there was no basis for any such order. The Tribunal’s reasons do not disclose it was conscious of this consequence, which is a very serious matter. To find, even indirectly, that a person has sought to mislead a court by making a false application for an intervention order is a serious finding.

32    That said, I do not consider the Tribunal’s fact-finding on this matter, even taking into account that it appears to have overlooked the significance of the contents of the intervention order, should be characterised as irrational in the sense that it has affected the Tribunal’s jurisdiction. There was some probative basis for the finding: the Tribunal was entitled to treat the movement records with a presumption of regularity, which is in effect what it did. There was a rational explanation for the ex-husband’s last visit being in 2011 and the Tribunal appears to have proceeded on that basis.

33    I accept there is no reasoning by the Tribunal about how it might have been that the appellant was able to “contrive” the screen shots, including text messages as well as the photograph. I accept that had the Tribunal paused to reason this through, it may well have affected its conclusion to disbelieve the first appellant about the screen shots. However, it was not required to adopt that particular reasoning process: I am not prepared to find that no rational decision-maker would have adopted the approach the Tribunal took.

34    I accept that, while the Tribunal saw an apparent contradiction between the first appellant applying for an intervention order and the content of the text messages (dealing with arrangements to meet her ex-husband and for him to spend time with their son), it is also likely that other decision-makers, reflecting objectively on the circumstances in which intervention orders are often sought and the shifting dynamics within a family at such times, might not have seen these circumstances as involving any contradictions. Again, this is precisely the kind of issue to which Crennan and Bell JJ referred in SZMDS about which reasonable minds might differ. The approach of the Tribunal was not outside the bounds of an approach a reasonable decision-maker might take, even if it might be said a majority of decision-makers would have reflected more carefully on the shifting dynamics at play when partners or parents are in dispute with one another before so clearly concluding that circumstance indicated the first appellant was not being truthful about her ex-husband being in Australia in 2014.

35    Further, and equally importantly, the Tribunal’s finding at [32] is likely to render the finding at [31] (see above at [28]) not material, in the sense discussed in Hossain. At [32], the Tribunal found:

Even if the applicant's ex-husband did visit [REDACTED] in August 2014, which the Tribunal does not accept, the evidence before the Tribunal indicates that the visit was brief and apparently cordial: [REDACTED] looks happy in the photograph and the applicant's aunt referred to "sad goodbyes" in her message. The evidence provided indicates that the applicant's ex-husband has had regular but relatively infrequent contact with [REDACTED] and has visited him once in the three years he has been living in Australia.

36    This finding was, independently of the finding about the screen shots, rationally capable of supporting the Tribunal’s finding in the next paragraph:

Having regard to the circumstances set out above, the Tribunal does not accept that the applicant's ex-husband intends to abduct [REDACTED] if he and the applicant return to Malaysia.

Second finding: regarding abduction of son on return to Malaysia

37    As the Minister submitted, this factual issue related to the risk the first appellant’s ex-husband would abduct her son on their return to Malaysia, and take him to Indonesia, not to a finding about what would happen in a custody dispute in the Malaysian courts.

38    This aspect of the appellants’ arguments appeared to impugn [33] of the Tribunal’s reasons (flowing from the reasoning in [28]-[32]), although this was not quite as clear from the appellants’ submissions. The appellants’ written submissions (at [13]) put the second ground rather differently. They appear to make contentions about what the Tribunal should have found, based on specific evidence and material which they contend the Tribunal ignored, rather than impugning a finding the Tribunal did make (which is ground 1). The written submissions contend:

The Court below ought to have found that it was illogical and irrational for the Tribunal to find that the ex-husband did not intend to take [REDACTED] (by abduction or otherwise) to Indonesia, to seek custody in that jurisdiction, for the following reasons:

(a) the ex-husband’s intention to obtain custody of [REDACTED] (as to which, see below at [16]-[18]);

(b) the ex-husband is of poor character and likely to engage in unlawful means, which was a matter ignored by the Tribunal and, as to which, the Tribunal ignored the following evidence:

(i) while the mother and [REDACTED] lived with the ex-husband in Indonesia, the ex-husband would refuse to return the son, and the mother had to threaten to shame her ex-husband in front of his Parliamentary colleagues in order to have him return the son;

(ii) the ex-husband apparently gave false evidence in a Court in Malaysia that the son was not an Indonesian citizen, despite [REDACTED] being a dual citizen of Malaysia and Indonesia;

(iii) the ex-husband gave false evidence in a Court in Malaysia that he was resident in Malaysia;

(iv) the ex-husband engaged in domestic violence (as to which, see above at [10] and below at [14]-[15]); and

(v) the ex-husband arrived in Australia in August 2014 and obtained access to the son, without warning to the mother and without her prior consent (as to which, see above at [7]-[11]).

(c) the advantage to the ex-husband that the mother could not take effective legal action in Malaysia to retrieve [REDACTED] from Indonesia (for lack of jurisdiction and likely lack of willingness by her parents to support such an action, as to which see below), notwithstanding the Tribunal’s assertion, without any evidentiary basis or reasoning, to the contrary;

(d) the advantage to the ex-husband that the mother lacks support in Indonesia and therefore would be practically unable to contest a custody application by her ex-husband in Indonesia, which was a matter ignored by the Tribunal and, as to which, the Tribunal ignored the following evidence:

(i) the mother has negligible assets and is reliant on her parents;

(ii) the mother has no relatives or friends in Indonesia and when she was last in Indonesia she was made homeless by her ex-husband;

(iii) the ex-husband holds high office in Indonesia and has great influence;

(e) the advantage to the ex-husband that the mother lacks standing in Indonesia and therefore could not contest a custody application by her ex-husband in Indonesia, which was a matter ignored by the Tribunal and, as to which, the Tribunal ignored the following evidence:

(i) the mother is not a citizen or resident of Indonesia and cannot obtain a visa for re-entry into that jurisdiction;

(ii) the mother would be in danger of being arrested at the instigation of her ex-husband; and

(iii) the destruction of records in Indonesia of the First Applicant’s marriage to her ex-husband.

39    Insofar as it is contended that the conclusion at [33] of the Tribunal’s reasons was irrational, I have dealt with that in my reasons under ground 1. Insofar as it is contended that the matters I have extracted at [38] provide a different basis on which to impugn the Tribunal’s findings at [33] as irrational, I reject that submission. What is occurring with [13] of the appellants’ written submissions is the presentation of an entirely different approach to fact-finding on the appellants’ claims. The contention at [13(b)] that the “ex-husband is of poor character” is one example. Whether that was the case or not was for the Tribunal to consider, not a supervising Court. The Tribunal has, as the authorities have made clear, an area of decisional freedom, especially in fact-finding. There is not necessarily only one rational way to approach fact-finding in circumstances such as this. The appellants’ written submissions proffer another way which could have been adopted. That does not make the Tribunal’s assessment irrational.

40    The Tribunal understood, as its finding at [10] makes clear, that the first appellant could not enter Indonesia, and that if her son was taken there by her ex-husband, she could not follow and could not live there. The Tribunal made its findings about the abduction claim in this context. It also made its findings in the context of its other findings at [20] and [22]:

When asked if she and her husband finalised an agreement regarding the custody of [REDACTED] and the property settlement (having regard to her writings at ff.107-109 of the Departmental file), the applicant stated that there was no agreement. She stated that her ex-husband knew of her plans to come to Australia with [REDACTED] prior to the divorce and that she told him during the property case that she wanted the money to set up a house for [REDACTED] in Australia. She also texted him shortly after arriving in Australia but he did not respond.

…

When asked if her ex-husband has had contact with [REDACTED] since he has been in Australia, the applicant said that he did not initially but now speaks to [REDACTED] once or twice a month and that the last contact was in July. In her most recent written statement, she said that [REDACTED] and her ex-husband speak every two months.

41    It is true these passages are more about any apprehended custody application than an abduction. Nevertheless, it is clear that the Tribunal’s view of the evidence was that the ex-husband had not objected to the appellants coming to Australia, and living here, and had maintained a reasonable level of apparently cordial contact over that two year period from their arrival in 2013 to the Tribunal hearings in 2015 and 2016.

42    There is nothing irrational about this approach.

Third finding: domestic violence

43    The appellants challenge the Tribunal’s finding at [28]:

The applicant was quite tearful at the hearing when discussing her marriage and referred to her ex-husband as a psychopath. The Tribunal is unable to make any findings in relation to the claimed violence within the marriage but accepts that there may be anger and hostility between the applicant and her ex-husband.

44    There is a similar finding at [44] of the Tribunal reasons, where the Tribunal states:

The applicant has claimed that [REDACTED] witnessed her ex-husband violence towards her and that it will be harmful to him if he has to live with an abusive and controlling father. She has claimed that [REDACTED] was inadvertently hit by a cigarette her ex-husband threw at her on one occasion. As stated above, the Tribunal is not able to make findings in relation to the claimed domestic violence but accepts that being witness to domestic violence may be harmful to a child’s development. The Tribunal notes that the applicant is now divorced from her ex-husband so any domestic violence is not ongoing.

45    The appellants contend the Tribunal had ample material on which to make findings that the first appellant had been the victim of domestic violence at the hands of her ex-husband, and that it was irrational for the Tribunal to find it could not determine this factual issue. At [15] of their written submissions, the appellants refer to a range of evidence before the Tribunal which they contend “could (and should)” have led the Tribunal to find that if the appellants are returned to Malaysia, they will suffer significant harm from the ex-husband’s domestic violence.

46    This was one of the grounds where the appellants relied on the delegate’s finding to which I have referred at [23] above. As I have already found, the Tribunal was free to make different factual findings to the delegate, so long as they were rational and supported by probative material, and that there was no denial of procedural fairness in the Tribunal doing so. The latter is not raised as an issue on the appeal.

47    Contrary to the appellants’ submissions, I do not accept the Tribunal “could (and should)” have found that, if they are returned to Malaysia, the appellants will suffer significant harm from the ex-husband’s domestic violence. The import of the Tribunal’s findings at [28] and [44] is clear: it only had one side of the story about domestic violence, and no independent evidence. In some cases, there may be evidence of intervention orders granted, or criminal charges laid, and that may be sufficient for a decision-maker to make findings even though there is no evidence from the alleged perpetrator. In the present case, it is clear from the Tribunal’s reasons (including in passages to which I have already referred) that the Tribunal did not entirely believe all the accounts of past events given by the first appellant. That was an approach it was entitled to take. When that context is recalled, it was rational and reasonable for the Tribunal to go on to determine that it was not able to make any findings about the existence or non-existence of domestic violence.

48    Nor do I accept the Tribunal made any of the “assumptions” set out in [15(e)] of the appellants’ written submissions in an irrational and illogical way and without evidence or reasoning. Each of the findings about whether the first appellant’s ex-husband was not a strict or conservative Muslim, whether he “allowed” the son to reside in Australia without any interference and whether he had refrained from interfering with the appellants living in Australia were inferences open to the Tribunal on the material before it. It was not irrational for the Tribunal to view the appellants’ residence in Australia in this light, and to see the first appellant’s ex-husband as having acquiesced to some extent to the appellants residing in Australia. The evidence about how the appellants came to Australia, about contact between them and the ex-husband, and about the support of the first appellant’s parents, were all matters capable of leading to the inferences the Tribunal drew. Another Tribunal member may have had a different approach, so much can be accepted, but that is not sufficient to establish jurisdictional error.

49    Again, as the Minister submitted, the Tribunal in any event made an alternative finding on the issue of domestic violence. It found, at [63]:

It has been submitted that [REDACTED] faces harm in Malaysia because of his status as a vulnerable child living in a household without male protection, as a victim of domestic violence, as a vulnerable child living in a household which does not include a blood male relative for protection, as a child at risk of being permanently deprived of his mother, as a child being brought up by a non-practicing Muslim and apostate mother in circumstances where the father is abusive and a strict Muslim and claiming custody.

The Tribunal has addressed the substance these claims in the findings above. The Tribunal also notes that, whether or not there was domestic violence between his parents, that relationship has now ended so [REDACTED] will not be exposed to any such violence in the future; and that [REDACTED] has protection of his maternal grandfather in whose household he effectively resides and may reside if he returns to Malaysia. The Tribunal accepts that the applicant’s ex-husband may be a practicing Muslim but does not accept that he is a strict or conservative Muslim given that he has allowed [REDACTED] to reside in Australia for the past three years without any interference.

50    The appellants did not submit that there was no evidence to support the findings in this passage. They simply contended for alternative findings. That is not sufficient for an irrationality argument to reach the level of jurisdictional error and to be upheld. The Tribunal was entitled to take into account the fact that the marriage had ended, and it is apparent from [21] of its reasons that the Tribunal was aware the ex-husband had remarried and had a second child. It was rational for the Tribunal to draw upon this context to find it was not persuaded that there was a real chance or a real risk of the appellants suffering harm in the form of domestic violence in the future.

Fourth finding: change of custody arrangements

51    This contention impugns the Tribunal’s findings at [30]:

The Tribunal is satisfied that the applicant’s ex-husband knew she was coming to Australia with [REDACTED]. As the applicant’s ex-husband has contact with [REDACTED] on approximately a monthly or two monthly basis and has not made any further custody application since [REDACTED] has been in Australia, the Tribunal is satisfied that he is not seeking to change the current arrangement.

52    Again, none of the findings in this passage are said by the appellants to have been made without evidence. Indeed, they are mostly based on the first appellant’s own evidence. Rather, the appellants contended a different view should have been taken, with less weight placed on the factors identified by the Tribunal and a more sceptical view taken of the ex-husband’s behaviour, and more weight given to the failed custody proceedings in Malaysia and other custody-related evidence.

53    There is no irrationality in the approach taken by the Tribunal, and the appellants’ challenge goes only to weight and emphasis, which was a matter for the Tribunal.

Fifth finding: Malaysian custody law and court proceedings

54    The Tribunal’s reasoning about what was likely to occur if the appellants returned to Malaysia and the ex-husband sought custody of the son is set out at [34]-[43] of the Tribunal’s reasons. Many of the findings it makes in these paragraphs are based on country information, identified in the footnotes to this part of the reasons. The appellants did not submit that that country information did not say what the Tribunal found it said. While the delegate may have found there was some practical discrimination in custody hearings, this was once again the kind of difference in fact-finding between two levels of merits decision-makers which does not, of itself, establish one set of fact-finding is irrational. Rather, it is the difference of reasonable minds, to which the Court referred in SZMDS.

55    Senior counsel for the appellants relied heavily on the contents of the first appellant’s statutory declaration, which set out a number of allegations about her relationship with her parents, her parents’ attitude to her and her son, and to her keeping custody of her son. It is clear, again, that the Tribunal had some doubts about the reliability of some of the first appellant’s evidence. The Tribunal was conscious of her evidence on this issue, referring to it at [48] of its reasons. However, the Tribunal saw the relationship differently, looking at other aspects of the evidence. At [49]-[55] it found:

The applicant confirmed at the hearing that she and [REDACTED] live in a house owned by her parents. She provided copies of her bank statements showing regular deposits by her father and she confirmed that she does not work and that she and [REDACTED] are entirely financially supported by her father. She confirmed that her parents stay at the house with her and [REDACTED] when they visit Australia.

The Tribunal located Movement Records for the applicant’s parents which show that they travel to Australia frequently. The Tribunal was initially unable to locate Movement Records for the applicant’s father but was able to do so after the applicant provided a copy of her father’s passport which sets out her father’s full name.

The Movement Records of the applicant’s mother indicate that she travelled to Australia, on the same or almost the same dates as the applicant on six occasions between 2004 and 2013 and that she visited Australia six times between when the applicant and [REDACTED] entered Australia in March 2013 and January 2015.

The Tribunal put to the applicant (pursuant to s.424AAof the Act) that the evidence of her mother's Movement Records indicate that she has a close and supportive relationship with her mother. The applicant agreed that she has a close relationship with her parents and that they love each other.

The Movement Records of the applicant’s father confirm the applicant’s evidence to the Tribunal that he has also travelled to Australia regularly. His Movement Records show that he travelled to Australia with the applicant’s mother on the six occasions referred to above and that he has travelled to Australia a further three times in 2015 and 2016 arriving most recently on 9 September.

The Tribunal asked the applicant why she has not obtained employment and her own place to live if her relationship with her parents is as unstable and abusive as she claims. The applicant stated that she has not been able to find a job in Australia because she does not have permanent residence and because she needs a job that fits in with [REDACTED]’s school hours. The Tribunal put to the applicant that the fact that she attended a co-educational high school in Australia from the age of 13 then attended university in Australia suggests her father is not conservative and traditional as she claims. When asked why she could not live with her parents in Malaysia given that she appears to be able to live with them in Australia, the applicant said that she would have to spend longer with them in Malaysia.

In her most recent written statement, the applicant said that she has had fewer problems with her parents since she has been in Australia. When asked about current problems, she said that, during her parents’ last visit, [REDACTED] witnessed her father being irritable and her mother being on tiptoes. The applicant had to clean the house for days before they arrived. Her father picks up on little things such as dust behind the TV.

The Tribunal has had regard to the applicant’s writings and views about her relationship with her parents and her claims that they have been abusive towards her. The Tribunal accepts that there may sometimes be conflict in the applicant’s relationship with her parents however, she has also stated that she is close to them and that they love each other. As discussed with the applicant, the evidence before the Tribunal indicates a close and supportive relationship - the applicant’s parents assisted her with her court case, she is living in their house in Geelong, her father financially supports her and [REDACTED] and her parents visit often. The Tribunal does not accept that the applicant has been forced to live in her parents’ house and be supported by them because she cannot get a job in Australia (subject to visa conditions) given that she is a 36 year old woman with a university degree and excellent English language skills.

56    These passages show the Tribunal did not accept uncritically what the first appellant said, but weighed and evaluated different aspects of her evidence, and preferred some aspects to others. That is a basic part of the Tribunal’s merits review function and there was nothing irrational in what it did. These particular findings were not the subject of direct challenge on the appeal, but their nature and content illustrate why the Tribunal approached its fact-finding about the possibility of custody proceedings in Malaysia in the way it did. The fact that, as senior counsel submitted, some of this evidence about the nature of the first appellant’s relationship with her parents could have been cast in a different light by reference to their alleged views on custody does not render the approach the Tribunal chose to take one that no rational decision-maker could possibly have adopted.

57    Senior counsel emphasised the prospect that if the first appellant lost custody of her son (whether through Malaysian courts or otherwise), she would not be able to follow her ex-husband to Indonesia if he took their son there, and the first appellant might “never see her son again”. The Tribunal was aware of such potential consequences for the first appellant, when it found at [43]:

The Tribunal accepts that the applicant may be genuinely concerned that she will lose custody of [REDACTED] if she returns to Malaysia and that this would be very distressing for her and possibly [REDACTED].

58    However, the Tribunal had found that the Malaysian justice system, and the family law system in particular, places the welfare of the child at the centre of its assessment, and having made those findings, it was open to the Tribunal to find, in effect, that even if there was some prospect the first appellant might lose custody of her son pursuant to rulings made by a Malaysian court, the reason for that treatment (and its acknowledged distressing consequences) would be a ruling of the Malaysian court and not any Convention reason. Further, it was open to the Tribunal to find that any application for custody made by the first appellant’s ex-husband, or grant of custody after a legal process, in those circumstances would not amount to persecution or serious harm of either the first appellant or her son. Although senior counsel criticised this finding as well, that finding did not form part of the findings set out in what I have described as the five “grounds” of appeal, and no argument was developed, by reference to applicable legal principles, as to how there was any error of law (let alone one of a jurisdictional nature) in the Tribunal making this particular finding.

Conclusion

59    Returning to the descriptions of irrationality by the High Court in WET040, the impugned findings of the Tribunal were not “bare assertions” or “speculation or conjecture”, or findings “unsupported by basic inconsistencies”. The inferences drawn were within the bounds of rationality, even though it can be accepted that other decision-makers may have preferred different aspects of the evidence. Accepting that reality is to recognise one of the features of merits review, which sometimes works in favour of review applicants, and sometimes against them.

60    The appeal must be dismissed. The parties will be given an opportunity to be heard on the question of costs, including an appropriate quantum for any lump sum, whether to be fixed by agreement or by reference to evidence.

Associate:

Dated:    5 March 2019