Federal Court of Australia

CZT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 819

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 4 June 2020 as amended on 10 June 2020 be set aside and in lieu thereof, the Court orders that:

(a)    the decision of the Administrative Appeals Tribunal (Tribunal) dated 1 March 2018 be set aside;

(b)    the matter be remitted to the Tribunal to be determined according to law; and

(c)    the first respondent pay the applicants’ costs.

3.    The first respondent pay the appellants’ costs of the appeal.

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

REASONS FOR JUDGMENT

HALLEY J

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA): see CZT16 v Minister for Home Affairs [2020] FCCA 1451. The primary judge dismissed an application for review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 March 2018. In that decision, the Tribunal affirmed the earlier decision of a delegate of the Minister for Immigration and Border Protection on 20 March 2015 to refuse to grant the appellants’ protection (Class XA) visa application pursuant to s 65 of the Migration Act 1958 (Cth) (Migration Act).

2    For the reasons outlined below, the appeal is allowed.

Factual Background and procedural history

Circumstances of the protection visa application

3    The appellants are a family unit comprising a wife, husband and two children. They are citizens of Albania. The two children, a daughter and a son, were born in Australia in 2011 and 2014 respectively.

4    The adult appellants arrived in Australia on 9 December 2010.

5    The first named appellant (First Appellant) initially applied for a Protection (Class XA) Visa on 9 February 2011 as a secondary applicant to her husband (Initial Visa Application).

6    On 26 August 2011 a delegate of the Minister for Immigration and Citizenship refused the Initial Visa Application.

7    On 22 March 2012 the Refugee Review Tribunal affirmed the delegate’s decision in relation to the Initial Visa Application, having specifically considered whether the First Appellant, as she then claimed, would face a real chance of serious harm as a member of a particular social group, being her husband’s family.

8    On 28 February 2014, the adult appellants and the appellant daughter made a further application for a Protection (Class XA) Visa relying on the complementary protection criteria in s 36(2)(aa) of the Migration Act introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) (Visa Application).

9    The only claims for protection that were advanced in the Visa Application that are relevant to this appeal are the claims advanced by the First Appellant. The evidence relevant to those claims before the Tribunal, none of which was materially doubted or rejected, is outlined below.

10    In June 2009, following her marriage, the First Appellant went to stay at her mother’s home in Shkodër, Albania. At that time, the First Appellant’s younger female cousin was also staying with the First Appellant’s mother. The cousin was around the age of 15. The First Appellant’s mother owned a number of vineyards and employed workers who came to work on her vineyards from time to time.

11    One of the workers employed by the First Appellant’s mother told the First Appellant that he was very interested in the cousin, he was serious about her and he wanted to marry her. He asked the First Appellant to talk to the cousin.

12    The First Appellant was “influenced by the romance of the situation” and by the fact that the worker and the cousin seemed to be a well-suited couple, and she encouraged the cousin to speak to the worker.

13    In order to assist the cousin and the worker to meet, the First Appellant asked for the cousin’s assistance in delivering drinks to provide a pretext for the cousin to speak to the worker.

14    The cousin and the worker subsequently began a relationship. The First Appellant asked the cousin to be discreet about this knowing “that [the cousin’s] family would not be happy with what [she] had done”, but she continued to discuss the relationship with the cousin in the following months.

15    Sometime prior to September 2011, the cousin married a different man. The marriage was forced and unhappy.

16    On 27 July 2012, the cousin committed suicide.

17    There was no suggestion in the evidence before the Tribunal that the First Appellant’s mother was aware prior to the cousin’s suicide of her relationship with the worker or the role that the First Appellant had played in bringing the two of them together.

18    The cousin’s father, the First Appellant’s uncle, came to the First Appellant’s mother’s house and confronted her after the cousin’s death. He accused the First Appellant of having “put [the cousin] with a Muslim guy” and blamed the First Appellant for the cousin’s death. He made threats, declaring to the First Appellant’s mother that “you will feel the pain as we are feeling it now” and “my daughter is dead but your daughter will go the same way”. As the Tribunal observed, “the [First Appellant] interpreted the first quote to mean that they were threatening to kill her so that her mother would feel the same pain they felt”.

19    On 20 March 2015, a delegate of the Minister for Immigration and Border Protection (Delegate) refused the Visa Application.

20    The appellants applied to the Tribunal for a review of the Delegate’s decision.

21    On 14 September 2016, the Tribunal affirmed the Delegate’s decision.

22    On 1 December 2016, the FCCA quashed the Tribunal’s decision (by consent) and the matter was remitted to the Tribunal for redetermination according to law.

23    The orders made by the FCCA were further varied by consent on 5 September 2017.

24    On 1 March 2018, the Tribunal again affirmed the Delegate’s decision to refuse the Visa Application.

Decision of the Tribunal

25    In its 1 March 2018 decision, the Tribunal accepted: that the cousin committed suicide; that her family blamed the First Appellant for having introduced the cousin and the worker; and that threats were made to the First Appellant’s mother “as claimed by the applicants”.

26    The Tribunal, however, noted that in the eight years since the cousin’s death, the uncle “has not attacked the [First Appellant’s] mother when she leaves her house [or] attempted to enter her house” and that on previous occasions when he assaulted her “he did not do so with intent to cause serious harm”. It found that the uncle had only harmed the First Appellant’s mother to an extent that was not significant: “being pushed to the ground, held tightly on the arm and having threats shouted to her from the street”.

27    The Tribunal stated that it had questioned the First Appellant as to why the uncle had not harmed her mother in the preceding eight years given that her mother “was responsible for bringing [the worker] to the farm and allowing [the cousin] to go with the [First Appellant] to serve the workers”. The Tribunal recorded that the First Appellant’s response was that she herself “was directly responsible for the relationship and not the other members of her family”.

28    In a statutory declaration dated 9 May 2017, the First Appellant explained that the “relationship between [the cousin] and [the worker] was only made possible because of [her]”, that she had played an active and deliberate role in helping the worker and the cousin to talk to each other and that “[her] mother was therefore not to blame as she did not do anything wrong”. Furthermore, the First Appellant stated in her statutory declaration: “I was the one who breached tradition and so I am the one who was blamed”.

29    The Tribunal did not accept this evidence. Rather the Tribunal found:

It is difficult to identify a substantially higher level of responsibility for the illicit relationship lying with the [First Appellant] who was turning 19 at the time, and the mother who was the person ultimately responsible for the workforce. It has been argued that the relationship between [the cousin] and [the worker] would not have occurred were it not for [the First Appellant] and as such [the uncle] is focused upon the actions of the [First Appellant] alone. While it is true that without the [First Appellant’s] actions the relationship would not have occurred it is also true that without the mother allowing [the cousin] and the [First Appellant], two young women of which one was only recently married, to go to the fields or facilitating an environment where [the worker] could meet alone with [the cousin] makes her equally culpable.

30    The Tribunal made two critical consequential findings:

(a)    the First Appellant “would face equal types of harm from [the uncle]” — that is, equal to that which had been inflicted on her mother; and

(b)    these forms of harm “would not amount to significant harm” for the purposes of s 36(2)(aa) of the Migration Act.

31    The Tribunal concluded that:

I do not accept that [the uncle] would not cause serious harm to someone who is equally responsible for his daughter’s suicide, but instead wait for nearly a decade to harm the daughter so as to harm the mother by making her feel ‘the pain as we are feeling it’. As such I find that the [First Appellant] faces a remote risk of significant harm as a necessary and foreseeable consequence of returning to Albania.

32    The Tribunal found that the First Appellant and her family did not satisfy the relevant criterion in s 36(2)(a) or (aa) of the Migration Act. As a consequence, the Tribunal found that they were also unable to satisfy the criteria in s 36(2)(b) or (c) of the Migration Act.

33    The appellants sought judicial review of the decision of the Tribunal pursuant to s 476 of the Migration Act.

34    On 4 June 2020, the FCCA dismissed the appellants’ application for judicial review of the decision of the Tribunal. The Court concluded at J[36]:

… In my view, it cannot be said that the conclusion of the Tribunal was not arrived at by a logical process of reasoning. It reasoned that the passage of time and the lack of significant harm to the mother of the [First Appellant] supported a conclusion that there were no substantial grounds for believing there was a real risk of significant harm to the [First Appellant]. That amounted to an evident and intelligible justification. Another decision maker may have taken a different view, but that is beside the point.

35    On 10 June 2020, the orders of the FCCA were amended pursuant to r 16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth) to provide for a fixed costs order in favour of the Minister.

Appeal

36    The appellants rely on a single ground of appeal articulated as follows:

The Court below erred:

a.     in finding that the material conclusions which led to the decision of the Second Respondent (Tribunal) dated 1 March 2018 (Decision) were arrived at by a logical process of reasoning; and

b.     in failing to find that the Decision was affected by jurisdictional error because it was materially affected by illogical or irrational reasoning.

37    The appellants developed their ground of appeal in their written submissions:

2.     … In determining that the Appellants would not face a real risk of significant harm if removed to Albania, the Tribunal relied upon illogical or irrational reasoning. In particular, the Appellants contend:

a.     first, that it was not open to a logical or rational Tribunal to conclude that the First Appellant and her mother were ‘equally’ responsible for the events which led to the First Appellant’s fear of harm; or

b.     second, that it was not open to a logical or rational Tribunal to conclude that the First Appellant and her mother would be ‘equally’ at risk because they were ‘equally’ responsible, without addressing whether they would be viewed in that way by their prospective attackers.

3.     As a result, the Tribunal’s decision was affected by jurisdictional error. Respectfully, the primary judge erred in finding to the contrary.

Consideration

Relevant principles

38    If particular findings or reasoning on the way to a decision maker’s ultimate conclusion and decision are challenged on the basis of illogicality or irrationality, jurisdictional error will not be made out unless it “was open to the [decision maker] to engage in the process of reasoning in which it did engage and to make the findings that it did make on the material before it”. The relevant test is to ask “whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding”. If so, “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”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [130]-[133] (Crennan and Bell JJ); SZOOR v The Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [84] (Rares and McKerracher JJ, Reeves J agreeing).

39    I note here that both counsel for the appellants and for the first respondent (or Minister) were in agreement, in oral submissions, that although the term “extreme illogicality” has been frequently employed by the courts (see, by way of example, DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 (DAO16) at [30] (Kenny, Kerr and Perry JJ)) to describe the relevant standard, “extreme” is a description of the relevant error as it emerges from SZMDS rather than a separate element that must be established. That is, “extreme” is a description of the result that a court would arrive at having employed the test from SZMDS and found that it was satisfied.

40    Illogicality and irrationality do not solely arise in respect of a decision maker’s ultimate conclusion or in respect of the decision itself. They may also arise in respect of subsidiary findings or reasoning leading to that conclusion, albeit that the overarching question is whether the decision itself is affected by jurisdictional error: Minister for Immigration and Citizenship v SZRKT and Another (2013) 212 FCR 99; [2013] FCA 317 at [150]-[156] (Robertson J); ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [47] (Griffiths, Perry and Bromwich JJ); CGA15 v Minister for Home Affairs (2019) 268 FCR 262; [2019] FCAFC 46 at [58]-[61] (Murphy, Mortimer and O’Callaghan JJ); and the cases referred to therein in each of these references.

41    In order for the appellants to succeed it is necessary for them to show that the Tribunal’s decision to affirm the Delegate’s decision to refuse the Visa Application was one which no rational or logical decision maker could have arrived at on the same evidence: SZMDS at [130].

42    The relevant question is “whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”, that is, whether “[o]n the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal”: SZMDS at [133] and [135]. If a logical or rational decision maker could have done so, the relevant findings will not be illogical or irrational, even if one may emphatically disagree with the Tribunal’s reasoning: SZMDS at [124], [131] and [135].

43    Nevertheless a decision may be affected by jurisdictional error on the basis of illogicality or irrationality where “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”: SZMDS at [135]. This may arise where, for example, a decision maker relies upon “unexpressed and unwarranted assumptions not based in any evidence”: DAO16 [45]; BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94 at [58] (Perram, Perry and O’Callaghan JJ). Findings require a probative basis and “some intellectual engagement that is beyond stereotyping and speculation”: DQM18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 110 at [52]-[53] (Bromberg and Mortimer JJ).

44    Inviting an applicant for a protection visa to speculate on the motivations, reasons or circumstances of a third party in the applicant’s country of nationality may be unlikely to produce probative material. Further, seeking to contrast that invited speculation against speculation of the Tribunal itself in order to reach findings constitutes no more than conjecture on the part of the Tribunal: AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [45]-[47] (Mortimer J).

Equality of responsibility and harm

45    The Tribunal, in substance, relied on the following syllogism to conclude that there was no serious risk of harm to the First Appellant if she returned to Albania:

(a)    C regarded A and B as equally responsible for the death of D;

(b)    C has not seriously physically harmed A in the eight years since the death of D;

(c)    it therefore follows that B is not at risk of serious physical harm from C.

46    Counsel for the appellants challenged the first premise (a). The second premise (b) was not challenged and was clearly open on the evidence before the Tribunal. It is important to observe, however, that the legitimacy of the second premise only holds if the prospect of harm was limited to physical harm.

47    Counsel for the appellants submitted that it was not open to a logical or rational decision maker to conclude that the First Appellant and her mother were “equally responsible” for what had occurred and that they therefore faced risks of “equal types of harm”. The reference to “equal types of harm” captures the observation above; that is, would equality of responsibility necessarily translate into an equality of risk of physical harm or, by way of example, an inequality or disparity of harm, such as physical harm to the First Appellant and psychological harm to the First Appellant’s mother.

48    There were two essential limbs to the Tribunal’s reasoning. First, that the uncle regarded the First Appellant and her mother as equally responsible for the suicide of his daughter. Second, given the uncle’s attribution of responsibility for the cousin’s death, the First Appellant and her mother faced an equal risk of physical harm.

First limb of Tribunal’s reasoning

49    Counsel for the appellants submitted that there was no way in which a logical or rational decision maker could conclude that the First Appellant’s mother was “equally responsible” or “equally culpable” for the relationship or the cousin’s death on the basis only that she had not maintained constant vigilance and control over her daughter and her niece.

50    He submitted that in view of the Tribunal’s acceptance, at least implicitly, of the First Appellant’s account that the relationship between the cousin and the worker would not have occurred without her actions, only one conclusion was open on the evidence, namely that the First Appellant bore greater responsibility for the relationship between the cousin and the worker and, by extension, for the cousin’s subsequent suicide, than her mother.

51    Further he submitted that even if one could view the question of “responsibility” or “culpability” for the cousin’s suicide in the way that the Tribunal had, that did not provide any logical basis for a finding that the uncle also viewed the situation in that way. He contended that the question of “who was objectively responsible for [the cousin] meeting [the worker]” was a very different question to “who does [the uncle] blame for [the cousin’s] death”.

52    The appellants’ counsel contended that, even if it had been open to the Tribunal to conclude that the First Appellant and her mother were “equally responsible” for the cousin’s death, and that they were therefore “equally” at risk, this would not of itself provide a logical or rational basis for a finding as to who the uncle thought was responsible for the cousin’s death or how the uncle proposed to respond. He submitted that to reason otherwise would be to rely upon unexpressed and unwarranted assumptions without any basis in the material before the Tribunal or to engage in mere speculation about matters beyond the scope of ordinary human experience.

53    There is considerable force in the submissions made by counsel for the appellants that the Tribunal embarked on an objective assessment of respective responsibility for the cousin’s death in reaching its conclusion that the First Appellant and her mother were equally responsible, rather than attempting to determine who the uncle thought was responsible for the cousin’s death.

54    It would appear that the Tribunal, in the absence of any evidence as to the uncle’s perceived attribution of responsibility, has determined by reference to its own evaluative judgment of respective responsibility that the First Appellant and her mother were “equally culpable”.

55    As acknowledged by counsel for the Minister, however, the relevant attribution of responsibility was subjective, in the sense of a determination of how would the uncle have been expected to attribute responsibility for his daughter’s death, rather than an objective assessment made by the Tribunal informed by its own assessment of respective responsibility.

56     The objective approach of the Tribunal to the “responsibility issue” is reflected in the “difficulty to identify a substantially higher level of responsibility” and “makes her equally culpable” passage of the reasoning of the Tribunal, reproduced at [29] above.

57    As submitted by counsel for the Minister, however, the Tribunal’s reasons should not be examined “with an eye keenly attuned to the perception of error” or “with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 291 (Kirby J).

58    Having embarked on an exercise of seeking to determine the respective responsibility of the First Appellant and her mother for the death of the cousin, on one view given the absence of any specific evidence as to how the uncle assessed “respective responsibility” the only course available to the Tribunal was to engage in an objective examination of the evidence before it and draw inferences as to how the uncle was likely to assess “respective responsibility”.

59    Ultimately, I am not persuaded that the approach taken by the Tribunal could not have been taken by a logical or rational decision-maker.

60    Nor am I persuaded that the finding made by the Tribunal, that the First Appellant and her mother would have been considered by the uncle to have been equally responsible for the death of the cousin, was a finding that could not have been made by a logical or rational decision-maker.

61    As submitted by counsel for the Minister, this was a finding that was rationally open to the Tribunal, and in relation to which its reasons revealed an evident and intelligible justification: the First Appellant’s mother was responsible for bringing the worker to the vineyard, allowing the cousin to accompany the First Appellant to serve the workers in circumstances where the First Appellant was only 19 years old at the time and her mother had ultimate responsibility for the workforce.

62    I note that this was the finding, in substance, made by the Delegate and the previously constituted Tribunal. While not determinative, those findings provide a further impediment against a finding that the Tribunal’s reasoning with respect to the equal attribution of responsibility was so illogical that no rational or logical decision maker would have so reasoned.

Second limb of Tribunal’s reasoning

63    More problematic, however, was the reasoning of the Tribunal that it was possible to infer from an equal responsibility for the cousin’s death that there would be an equal risk of harm.

64    In substance, the Tribunal reasoned that because there had been no substantive physical harm to the First Appellant’s mother, given their equal responsibility for the cousin’s suicide from the uncle’s perspective, the Tribunal could conclude that it was unlikely there would be any prospect of substantive physical harm to the First Appellant if she returned to Albania, particularly given the effluxion of time since the death of the cousin.

65    I am satisfied that it was not open to a rational or logical decision maker to proceed in this way.

66    First, the difficulty with the reasoning is that it focused exclusively on physical harm and ignored the threatened psychological harm to the First Appellant’s mother.

67    The reasoning appears to have proceeded independently of any genuine consideration of the specific threats that the Tribunal had accepted had been made by the uncle, namely “you will feel the pain as we are feeling it now” and “my daughter is dead but your daughter will go the same way”. The relevant threat to the First Appellant’s mother was a threat of psychological, not physical, harm; namely, the death of her daughter. The relevant threat of harm to the First Appellant was death. Given the specific threat made by the uncle, it is simply not possible to identify any logical connection between any absence of physical harm to the First Appellant’s mother in the period following the death of the cousin and the likelihood of the uncle causing any physical harm to the First Appellant, if she were to return to Albania.

68    Second, the Tribunal accepted that: the uncle was a man living in rural Albania where many people lived by old-fashioned traditions; he was a person claimed to be especially brutal, even by Albanian standards; he was not acting rationally and logically; and he was motivated by a desire for revenge driven by pain. In those circumstances there simply does not appear to be any logically defensible link between any absence of physical harm to the First Appellant’s mother, given the content of the specific threats made to the First Appellant’s mother and the likelihood of any physical harm to the First Appellant. The uncle was just as capable of inflicting psychological harm as he was physical harm and there is no reason to suggest that he was motivated to do only the latter. By engaging in an objective assessment of “equal responsibility” leading to an alleged “equal likelihood of harm” finding, the Tribunal proceeded independently of, and inconsistently with, its own findings of the uncle’s character and conduct.

69    Finally, the Tribunal accepted that the uncle had told the First Appellant’s mother that he knew everything about the First Appellant, including that she had a son. In such circumstances, there does not appear to be any logical basis for the Tribunal to have found that if the uncle had been genuinely desirous of exacting harm upon the First Appellant that he would have waited outside the First Appellant’s mother’s house and physically threatened her in order to obtain details of the First Appellant’s location. If he did indeed “know everything” about the First Appellant, it seems likely that he would know where she lived.

Materiality

70    The existence of error is not sufficient to establish jurisdictional error. It is also necessary to establish materiality. An error is only material if there is a realistic possibility that the decision in fact made could have been different had the error not occurred: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [44]; CRL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 917 at [71], [83] (Stewart J). A majority of the High Court recently declined to revisit the explanation of materiality in SZMTA, describing it as “sound in principle and consistent with precedent”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [2]-[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

71    In their ground of appeal, the appellants contend that material conclusions leading to the Tribunal’s ultimate decision were materially affected by illogical or irrational reasoning.

72    The second limb of the Tribunal’s reasoning outlined above was a critical and therefore material step in the Tribunal reaching its conclusion that there was a remote risk of the First Appellant facing significant harm if she returned to Albania. The principal foundation for that conclusion was the erroneous reasoning that because the uncle had not inflicted any significant physical harm on the First Appellant’s mother in the eight years following the death of the cousin, there was only a remote risk that he would inflict any significant physical harm on the First Appellant if she were to return to Albania.

73    For this reason, I am satisfied that there is a realistic possibility that the Tribunal could have exercised its power differently but for the error. Jurisdictional error is therefore established.

Disposition

74    It follows, for the reasons that I have given above, that the primary judge erred in dismissing the application for review of the decision of the Tribunal and the appeal should be allowed with costs.

Associate:    

Dated:    21 July 2021