Federal Court of Australia

JNMK v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 829

ORDERS

THE COURT ORDERS THAT:

1.    The time for the applicant to appeal from the decision of the primary judge is extended to the end of 7 July 2023.

2.    The appellant has leave to rely on the amended draft notice of appeal filed on 18 October 2023.

3.    The appeal is dismissed.

4.    The appellant must pay the first respondent's costs of the appeal, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant seeks an extension of time to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2). That Court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal, which affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a protection visa.

2    The applicant needs an extension of time because he filed his application in this Court some 50 days after the expiry of the time limited for appealing as of right from the primary judge's decision. He also applies for leave to appeal on a ground not raised before the primary judge.

3    The Minister has resisted the applications solely on the basis that the proposed new ground has insufficient merit to warrant granting an extension of time or leave to rely on it. The applications thus turned solely on the merit of the ground, which was fully argued. I will determine the applications on that basis, and so will not canvas the other discretionary factors that bear on the applications for leave.

4    By the proposed ground, the applicant contends that the Tribunal's decision is vitiated by illogicality or legal unreasonableness, alternatively inadequate consideration, in the way that it addressed the fact that the applicant did not raise non-refoulement claims in the context of previous visa application processes.

5    For the following reasons, an extension of time and leave to rely on the proposed new ground will be granted, but the appeal will be dismissed.

Background

6    The applicant is a citizen of Zambia. He first arrived in Australia in 2008, on a student visa. In 2011 at university he met the person who would later become his wife. She is an Australian citizen.

7    In March 2012, the applicant was the driver of a car that was involved in a serious accident, in which a passenger was killed. He pleaded guilty to driving offences and the Magistrates Court of Western Australia imposed suspended sentences.

8    The applicant returned to Zambia in November 2012. The applicant and his wife married there in July of 2013. In the same month, he applied for both a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa, the latter of which is a permanent visa (permanent partner visa). The provisional visa was granted in 2013 and the applicant returned to Australia in early 2014.

9    Because of the suspended sentences, the Minister had a discretion to refuse the permanent partner visa if the applicant did not satisfy the Minister that he passed the character test: Migration Act 1958 (Cth) s 501(1). In January 2018, a delegate of the Minister refused the visa on that basis, and the Tribunal affirmed that decision. The applicant sought judicial review and in October 2019, this Court quashed the Tribunal's decision (on a ground that is not now relevant) and remitted the matter to the Tribunal for reconsideration.

10    The reconstituted Tribunal affirmed the visa refusal decision again in January 2021. I will refer to that review as the second Tribunal proceeding and to the Tribunal that determined it as the second Tribunal.

11    It is relevant to note that in that proceeding, by reason of s 499(2A) of the Migration Act, the second Tribunal was bound to observe the then-applicable Direction 79: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction 79). That Direction relevantly said this about non-refoulement obligations (at para 12):

(1)    In deciding whether to cancel a visa [sic refuse a visa], other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a)    International non-refoulement obligations …    

12.1    International non-refoulement obligations

…

(2)    The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.

(3)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s 501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).

(4)    Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

…

12    In opening submissions to the second Tribunal, the applicant's then counsel ran through various other considerations in Direction 79, during which the following exchange with the Senior Member occurred (ts 6):

[COUNSEL]: … So in all those circumstances I will be submitting that the weighting process that direction 79 requires the tribunal to undertake, there is a clear pathway for this tribunal to conclude that it should exercise its discretion in favour of the granting of the visa.

SENIOR MEMBER: Thank you. Just to confirm - I'm just looking through your SFIC again, there were no non-refoulement - - -

[COUNSEL]: They don't arise.

SENIOR MEMBER: Yes, all right. Thank you. Okay, very good.

13    An application for judicial review from the outcome of the second Tribunal proceeding was dismissed in July 2021.

14    In August 2021, the applicant made multiple requests for Ministerial intervention. According to the Tribunal, on 25 October 2021 both requests were 'not referred to the Minister', which I take to mean that the applicant was informed that they were not going to be referred to the Minister for consideration.

15    The next day, 26 October 2021, the applicant applied for the protection visa that is the subject of this proceeding. He claimed to fear returning to Zambia because of a family property feud. That ground will be described further below.

16    On 3 February 2022, the delegate refused to grant the protection visa, finding that 'the vague nature of the information provided by the applicant renders his claims to fear harm in Zambia wholly speculative'. The delegate also made observations about the lapse of time between the refusal of the applicant's permanent partner visa application and his application for protection.

The third Tribunal proceeding

17    The applicant then sought review in the Tribunal: the third Tribunal proceeding. The outcome of that proceeding is the subject of the proposed appeal.

18    The applicant was unrepresented in the third Tribunal proceeding. He attended two hearings and provided statements and country information in support of his claim. At the second hearing, on 6 April 2022, the Tribunal put to the applicant concerns it had about his 'failure' (the Tribunal's word) to raise his non-refoulement claims in the earlier proceedings before the Tribunal. It did this under s 424AA(1)(a) of the Migration Act, which permitted it to give the applicant 'clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review'.

19    On that same day, after the hearing, the Tribunal then put those concerns to the applicant in writing under s 424A of the Act, once again as particulars of the reason or part of the reason for affirming the delegate's decision. That letter gave the following particulars:

•    [the] decision of the Tribunal, differently constituted, on a past review of the refusal of your Partner visa under s 501 of the Act indicates that the submissions of your representative to the Tribunal and the material before the Tribunal did not raise any issues of non-refoulment obligations being owed to you with respect to your return to Zambia. The Tribunal was satisfied this consideration was not applicable to your application in that case.

•    The transcript of those proceedings indicates your representative confirmed that non-refoulment issues did not arise and that you did not raise any claims to fear harm from your family members on return to Zambia due to a dispute over property, to disinherit you or for any other reason.

20    The letter went on to say:

This information is relevant to the review because non-refoulment obligations are a matter which the Tribunal is directed to take into account, where relevant, when determining to exercise its discretion under s 501 of the Act. If the Tribunal accepts this information, subject to your comment or response, it may also cause the Tribunal on the current application for a Protection visa to doubt the credibility of claims which were not raised in the context of consideration of your visa refusal including where the Tribunal was required to consider whether non-refoulment obligations were owed to you. This may cause the Tribunal to find that your claims to be at risk of serious [or] significant harm on return to Zambia are not credible. If we rely on this information in making our decision, we may affirm the decision under review.

21    In referring to the refusal of the applicant's 'Partner visa' and to the 'visa refusal', the Tribunal appeared to be referring to the decision of the delegate that was affirmed in the second Tribunal proceeding.

22    The applicant responded to this letter on 18 April 2022, saying:

1.    I Contend that the question at hand should not determine the outcome of this review.

2.    As I was fighting the cancellation of my partner's Visa, I was concentrating all my efforts on Reinstating this visa back.

3.    I have indicated several times to the Department my intention to apply for a protection visa and their answer is always I should concentrate on reinstating your current visa.

4.    I have attached previously (before the first hearing) articles and Evidence to support my claims of family disputes over inheritance in Zambia tribe's biases in judging outsiders and people who have lived all their life in Zambia, tribe inheritance children's development.

5.    As mentioned before I did not mention the protection issue to my representative in tribunal as I was concentrating on the [reinstating] of my canceled partner visa …

The Tribunal's decision in the third Tribunal proceeding

23    The Tribunal gave its decision in the third Tribunal proceeding on 29 July 2022. The decision affirmed the decision of the delegate not to grant the applicant a protection visa. It is this Tribunal decision which the applicant wants to challenge in the present appeal. As usual in such matters, the claims of jurisdictional error need to be assessed in light of the Tribunal's decision as a whole, so it is necessary to traverse the Tribunal's (long and detailed) decision in some depth.

24    After setting out the background to the review, the Tribunal gave a high-level overview of the applicant's claims to protection as follows (para 11):

The issue in the review is whether the applicant has a well-founded fear of persecution in Zambia due to his status as the only male heir to his family's estate from members of his extended family, as a Christian, as a member of the Bemba tribe, due to separation from his family members in Australia [or] their return [with] him to Zambia, as a returnee convicted of serious offences in Australia, or as a returnee who is perceived to have failed overseas or for any other reason, or whether complementary protection provisions otherwise apply.

25    After summarising the claims before the delegate and the delegate's decision about them, the Tribunal summarised the presently relevant claims in the applicant's statement of issues, facts and contentions as follows (para 27):

•    The applicant is the only male heir of his family after his older brother was killed by members of his family who believe they have rights to his father's wealth and assets;

•    The applicant is a target of these family members who are trying to locate him and have raided his family home taking advantage of the lack of a male protector;

•    The applicant and his family cannot go to the authorities because they consider these matters should be dealt with within families and tribes;

•    He cannot relocate because his tribe and family are extensive all over the country and he will be able to be located wherever he is;

•    He has a well-founded fear of being persecuted for the reason of being the only male inheritor of his family wealth and this is very common all over Africa especially southern Africa …

26    The Tribunal recorded that in the first hearing in the proceeding, it had indicated to the applicant that it had before it a copy of the second Tribunal's decision refusing the applicant's application for a permanent partner visa, and a copy of the transcript of the hearing before the second Tribunal. The Tribunal had indicated, in effect, that to the extent that any of that may be considered to be adverse to the applicant's position in the third Tribunal proceeding, the Tribunal would discuss it with the applicant at the following hearing.

27    After summarising statements and information that the applicant had provided to it, the Tribunal noted some concerns that it had raised with the applicant as follows:

38.    At the second hearing the Tribunal discussed a range of concerns with the applicant including regarding his failure to raise any fears of harm in the context of earlier proceedings before the Tribunal.

39.    At the hearing the Tribunal formally put to the applicant, pursuant to s 424AA, information regarding his prior application for review of the refusal of his Permanent Partner Visa pursuant to s 501 and the fact fears of harm on return to Zambia had not been raised in that application. The Tribunal indicated the information, subject to his comment or response, would be the reason or part of the reason for affirming the decision under review. The particulars of the information were: [in substance as set out in the s 424A letter quoted at [19]-[20] above].

40.    The Tribunal explained that non-refoulement obligations arise in a range of circumstances including where a person is a refugee or where they would be owed complementary protection because of a real risk of significant harm as a necessary and foreseeable consequence of being returned to their country of nationality.

41.    The Tribunal explained that the information was relevant because non-refoulement obligations are a prescribed matter which the Tribunal must take into account when determining whether to exercise its discretion in s 501 matters. If the Tribunal accepted the information, subject to the applicant's comment or response, it may also cause the Tribunal to find that the applicant's claims to be at risk of serious or significant harm on return to Zambia are not credible. It may also cause the Tribunal to doubt the credibility of claims which were not raised in the context of consideration of his visa refusal including where the Tribunal was required to consider whether non-refoulement obligations were owed to the applicant if representations to that effect were made by the applicant. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.

42.    After a short adjournment the applicant indicated he had already said what he wanted with respect to these issues.

43.    At the end of the hearing, the applicant asked if the Tribunal could send him the information following the hearing so he could see if there was anything further he wanted to say about it. In light of this request and in order to give the applicant further time to consider those matters following the hearing, on 6 April 2022, the Tribunal sent the applicant a letter pursuant to s 424A of the Act putting the same information to him to enable him to make any further comments.

28    The Tribunal then reproduced in its reasons, essentially, the explanation of the relevance of the information described in the particulars of its concerns that is set out at [20] above. It then, at paragraph 45, summarised (accurately) the applicant's response to the concerns on 18 April 2022, set out at [22] above (including some matters not set out there that are no longer relevant).

29    The Tribunal went on to describe in great detail the evidence the applicant had given at the first hearing of the third Tribunal proceeding about his alleged fear of harm from family members. This included evidence about how his elder brother had been 'targeted' by the family members said to have been interested in his father's assets because, as the first born son, the brother was likely to inherit those. The applicant claimed that his brother died in February 2019. When asked what happened, the applicant referred to an earlier altercation between the brother and another family member but said that how the brother died was 'unknown'. After discussion of some other evidence, the Tribunal noted the applicant's evidence that his fear was that if he returned to Zambia the same thing would happen to him (para 63): 'I would be executed or tortured.'

30    The detailed description of the evidence also included the following (para 70):

The Tribunal noted that the applicant had returned home in 2012 for 14 months and did not suffer harm which may suggest he was not concerned about harm from his cousins and that he was able to live in Zambia without being harmed and the applicant said he was not harmed or targeted because he did not have any assets or property then. However, he said that now since his father is old (60 years) he doesn't have many more years left.

31    Also relevant is the following (paras 73-74):

The Tribunal noted the delay in the applicant lodging a protection visa, until three months after the Federal Court refused his appeal against the second decision and the applicant said that he changed case managers and the new case manager told him to apply.

The Tribunal asked if the applicant had raised this fear of harm in the application for review of the decision to refuse his Permanent Partner Visa under s 501 and he said that he did not 'because main target was to do with the character grounds.' The Tribunal put to the applicant that the fact that fears regarding harm on return to Zambia were not raised in the context of his Permanent Partner Visa refusal, including when represented, in the context of non-refoulement considerations, may raise a concern regarding the credibility of the claims to fear harm now put forward. The applicant said this is why it would be good if he had legal representation. He said he only knew about that information now. He confirmed he didn't raise his fear of harm on return before.

32    The Tribunal then described further evidence and summarised the applicable legal principles. As explained below, the applicant placed some reliance on a particular paragraph from that summary, namely paragraph 92:

The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal's Migration and Refugee Division 'Guidelines on the assessment of credibility', issued in July 2015 in particular at [8], [13], [17]-[19] and [27]-[28].

33    After summarising the applicant's migration history, the Tribunal went on to consider his claims. It accepted aspects of those claims as follows (paras 103-104):

The Tribunal accepts that the applicant is a Christian of the Bemba tribe whose home area is in [Suburb], Lusaka. He grew up in Lusaka and was one of four siblings. The Tribunal accepts that he is married to an Australian citizen and has two Australian citizen children. The Tribunal accepts that the applicant's parents and two sisters remain in Lusaka. The Tribunal accepts that the applicant's parents are both retired. The Tribunal also accepts, on the basis it is plausible, that his father holds assets including two farms, one in Lusaka and one in Central Province.

The Tribunal also accepts, on the basis it is plausible, that the applicant's brother died in 2019 while visiting family members in Central Province and that the applicant is the only remaining son in his family though he has two sisters, both of whom are married.

34    However, the Tribunal then said that it had 'significant concerns about the credibility of many aspects of the applicant's core claims' (para 105), which it went on to detail. Those concerns commenced with reference to inconsistencies in aspects of the applicant's core claims about events in Zambia. It noted that the applicant had failed to give evidence that substantiated or corroborated his claims when, in the Tribunal's view, it was reasonable to expect it to be provided (for example, evidence of the family's financial circumstances and inheritance arrangements).

35    In a passage of central relevance to the proposed appeal, the Tribunal then said (footnote removed):

109.    In the Tribunal's view, the applicant's conduct in Australia contributes further to doubting the credibility of his claims for protection. These include his delay in raising his claims to fear harm on return to Zambia for more than 13 years after he arrived in Australia, three years after his Permanent Partner Visa was refused and more than two … years after he claims his brother was murdered. In particular, the applicant's failure to raise any fears of harm at the hands of his family members due to his anticipated inheritance on return to Zambia during the s 501 review process where the Tribunal was bound to consider any claims by the applicant to be owed non-refoulement obligations.

110.    The applicant explained his general failure to raise his fears of harm on return to Zambia earlier because he was not the target of the attacks by his cousins until after his brother died and he became heir in 2019. Further, he claimed his parents were aging and this had heightened the risk associated with his inheritance. With regard to the failure to raise his claimed fear of harm in the context of the s 501 proceedings he said that he was concentrating all his efforts on reinstating his visa. The Tribunal did not regard these explanations to be credible in explaining the very late raising of these claims only after the applicant's Permanent Partner Visa was refused, appeals were exhausted and Ministerial intervention requests had failed. In the Tribunal's view it is reasonable to expect that if the applicant's fears were genuine he would have raised these concerns during prior visa processes, in particular since the refusal of his Permanent Partner Visa in 2018. In particular, it is reasonable to expect the applicant would have raised his claims to fear being seriously or significantly harmed by his family members in the context of his efforts to 'reinstate' his Permanent Partner Visa given such claims arise for consideration under the Ministerial Direction applying to those applications.

111.    In the Tribunal's view, it is reasonable to expect that if the applicant feared being killed or otherwise seriously or significantly harmed by his family members on return to Zambia he would have raised these concerns when his return to Zambia [sic] at least in the context of the refusal of his permanent Partner Visa when given the opportunity to do so and in a context where he was represented. The Tribunal finds his failure to apply for protection for more than two years after his brother's claimed murder a strong indication that he was not fearful of serious harm on the basis of his brother's death. That he failed to do so casts serious doubts on the credibility of his claims for protection.

112.    These issues are considered further below.

36    In relation to the last sentence of paragraph 110, it is common ground that the Ministerial Direction that applied to the decision of the second Tribunal was Direction 79.

37    The Tribunal then went on to expand on its concerns about the credibility of the applicant's claims, based on implausibility, internal inconsistencies and a lack of corroborating evidence. It also noted the lack of evidence linking the brother's death to the cousins or the family inheritance, describing the applicant's own evidence about it as 'vague and speculative' (para 118).

38    The Tribunal concluded that it did not believe the applicant's claims, that is, that the applicant subjectively feared serious harm on return to Zambia or that any such fear would be well founded. The Tribunal's reasoning focussed on the difficulties with the applicant's evidence just mentioned, and at one point it referred to 'other general credibility concerns detailed in this decision' (para 120). It also said (para 122):

The Tribunal also considered that the applicant's behaviour in returning to Zambia on two occasions, including bringing his now wife to Zambia for his wedding, was not behaviour which was consistent with his claims that the family were subjected to harassment and violence from other family members. While the applicant claims he was not at risk until after his brother's death the Tribunal regards it as implausible that if family members were seeking control of the inheritance they would not regard the applicant or any potential heir within the family as a threat or that the applicant would not have regarded himself as being at risk given the claimed history of violence by family members.

39    The Tribunal then considered country information about Zambia (that had been provided by the applicant) concerning property and inheritance laws and their enforcement in that country. On the basis of that information, it found the applicant's account of the risks he faced in connection with inheriting his father's property to be implausible.

40    The Tribunal went on to consider further inconsistencies and the lack of corroborating evidence before finding that the applicant's fears that family members will kill him to obtain his inheritance were neither genuinely held nor well founded. The Tribunal referred, again in general terms, to 'concerns regarding the credibility of the applicant's claims and evidence' before finding that there was not a real chance that he would be seriously harmed by his family members to gain access to his inheritance.

41    The Tribunal went on to consider more specific claimed instances of harm and found that they were not serious harm for the purposes of the refugee criterion in the Migration Act. It considered, and did not accept, the claim that the applicant's brother had been murdered and also did not accept that the applicant's father was unable or unwilling to take steps to protect his children in connection with their inheritance. The Tribunal then said (para 132):

As noted above the Tribunal was also concerned that the applicant waited two years after his brother's death before claiming protection in Australia and did so only after exhausting a range of other migration options. The Tribunal finds this is not consistent with the applicant's claims to fear harm.

42    The Tribunal also considered and rejected other claims, which need not be detailed here. It concluded that the applicant did not satisfy either the refugee criterion or the complementary protection criterion for the grant of a protection visa. The delegate's decision to refuse the visa was therefore affirmed.

The proposed appeal

43    As has been said, the amended draft notice of appeal seeks to raise a point not raised before the primary judge, so his Honour's reasons for decision are not relevant. There is one proposed ground:

The primary judge erred in failing to find that the Administrative Appeals Tribunal had committed jurisdictional error by finding that the applicant's claims for protection were not credible by a process of reasoning that was illogical, irrational, or legally unreasonable, alternatively which failed to give proper, genuine, and realistic consideration to a significant matter.

Particulars

(a)    At [39] of the statement of decision and reasons (Reasons), the Tribunal found that the applicant had not raised his fears of harm on return to Zambia in the context of his earlier application for a permanent partner visa.

(b)    At [41]-[44], [74], and [109]-[110] of the Reasons, the Tribunal proceeded on the mistaken premise that the applicant should have raised any genuine fears of harm in connection with his application for a permanent partner visa, when he was able at law to (and did) reserve his protection claims for a subsequent application for a protection visa if his permanent partner visa was not granted.

(c)    At [109] to [111] of the Reasons, the Tribunal found that the applicant's failure to raise his fears of harm in connection with his application for a permanent partner visa, or to apply for protection at an earlier time, cast serious doubt on the credibility of his claims for protection.

(d)    The Tribunal's process of reasoning leading to the finding in (c) above was illogical, irrational, or legally unreasonable because it rested on the mistaken premise identified in (b) above.

(e)    Alternatively, the Tribunal's process of reasoning leading to the finding in (c) above failed, at Reasons [45] and [110], to give proper, genuine, and realistic consideration to the reasons why the applicant did not raise his fears of harm at an earlier time.

44    According to the applicant's written submissions, the Tribunal was proceeding on the basis that non-refoulement was either a prescribed consideration in the context of the second Tribunal proceeding concerning the refusal of the permanent partner visa, or something that the applicant could and should have raised as a relevant consideration in that second proceeding. The applicant submits that there is some ambiguity in whether the third Tribunal adopted the former or the latter position. However, on the view I have taken it is not necessary to resolve any such ambiguity: I proceed below on the basis that the Tribunal held both of those positions.

45    The applicant submits that the third Tribunal's reasoning rested on a false premise, namely that it was incumbent on the applicant to have raised his protection claims in the second Tribunal proceeding. At paragraph 110 the third Tribunal says that such claims arise for consideration under the Ministerial Direction that applies to applications to 'reinstate' visas. (In fact, the second Tribunal proceeding concerned an application for review of a decision to refuse a visa on character grounds. It did not concern cancellation of a visa and possible revocation of the cancellation, that is, 'reinstatement'. But nothing turns on that.). The third Tribunal also implicitly invoked the relevant Ministerial Direction at paragraphs 41 and 44 (and in the s 424A letter), where it referred to non-refoulement as a 'prescribed matter which the Tribunal must take into account' or as a matter which the Tribunal was 'directed to take into account'.

46    The relevant requirements of the applicable Ministerial Direction, Direction 79, are set out at [11] above. The applicant submits that these mean that, while a non-citizen can raise non-refoulement claims in response to a notice under s 501 of the Migration Act (which the applicant had received here), such claims are unnecessary to determine when the non-citizen is able to apply for a protection visa. According to the applicant, this has three implications:

(a)    the direction enables a non-citizen to reserve protection claims to a subsequent visa application 'in order to focus on the considerations more pertinent to the visa then under review';

(b)    the directions relieve the decision-maker of the need to determine protection claims, even where such claims are raised; and

(c)    non-refoulement obligations are therefore not mandatory considerations, where the non-citizen has the capacity to apply for a protection visa.

47    What follows from all this, the applicant says, is that the third Tribunal was wrong to proceed on the basis that the applicant should have raised his protection claims in the second Tribunal proceeding, in support of his application for a permanent partner visa. He submits that his fears of harm were not directly relevant to that application. So, he says, he proceeded on the basis contemplated by Direction 79, namely to reserve his protection claims to a subsequent protection visa application.

48    According to the applicant, proceeding on that erroneous basis means that the third Tribunal's reasoning was illogical, irrational or legally unreasonable. It proceeded on the basis that the applicant 'ought to have conducted himself in a manner contrary to what was actually required of him'. This, it is said, was crucial to the Tribunal's finding on credibility and not a mere lapse in logic leading to an error of fact made within jurisdiction. Another way of characterising it is that the Tribunal made an unwarranted assumption.

49    Alternatively, the applicant contends that the Tribunal's reasoning at paragraph 110 fails to give proper, genuine and realistic consideration to the applicant's explanation as to why he had not previously raised his claims to protection.

Principles

50    Assuming that the error is to be characterised as making an unwarranted assumption, the applicant relied on Perram J's summary of the relevant principles in BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [7]-[8]:

On the current state of the authorities, it seems to me that the better view is that there is no freestanding ground of unwarranted assumptions. However, the making of unwarranted assumptions as part of a credit finding may be reviewed on rationality grounds (DAO16 [v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175]) or because the decision maker has failed duly to consider the question raised by the material (WAGO [v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437] and BZD17 [v Minister For Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292]). For myself, the former test is easier to apply in practice in the sense that it appears less conclusory. There are various extant formulations of this ground. The Full Court in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] described it this way:

Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is 'whether a decision-maker could reasonably come to the conclusion' reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.

(See also Minister for Immigration, Citizenship and Multicultural Affairs v JSMJ [2023] FCAFC 77 at [39])

Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. In this case, therefore, this means that the question for decision is whether the Tribunal's impugned credit findings were ones which could reasonably be arrived at or whether they lacked an evident and intelligible justification.

51    I respectfully adopt that summary, which helpfully states the general principles that apply when a ground of illogicality, irrationality and legal unreasonableness is raised.

52    For the purposes of this application, two other points may be made about such a ground.

53    First, as indicated by the statement of the test in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 and confirmed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (cited in BOH17 at [7]), the threshold for finding illogicality, irrationality and legal unreasonableness is a high one, and it is not a finding to be made lightly: see e.g. BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 at [45]-[46] (Perry J).

54    Second, where the decision maker gives reasons for the decision, if there is an intelligible justification for the decision in those reasons, it will be rare that the exercise of the power is found to be legally unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [47] (Allsop CJ, Robertson and Mortimer JJ).

Consideration

55    It is open to doubt the essential proposition on which the applicant's case proceeds: that the third Tribunal misunderstood the effect of Direction 79 in connection with refoulement obligations. After all, paragraph 12 of the Direction (reproduced at [11] above) commences by saying that international non-refoulement obligations must be taken into account where relevant. While the effect of paragraph 12.1(4) is that when the non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed for the purposes of determining whether their visa application should be refused, that is not precisely the same thing as saying that those obligations need not be taken into account. So it is arguable that, strictly speaking, the Tribunal was correct when it said that non-refoulement obligations are a matter which it is directed to take into account when exercising its s 501 discretion.

56    Nevertheless, the Minister did not contend that the third Tribunal's understanding of Direction 79 was correct in this regard. I will therefore proceed on the basis, favourable to the applicant, that the third Tribunal was incorrect when it said that the second Tribunal had been required to take non-refoulement obligations into account, where relevant, when determining whether to exercise its discretion under s 501 of the Act. And it said that repeatedly (see [20], [27], and [35] above), so it must be taken at face value to represent the third Tribunal's opinion on the subject for the purposes of making its decision.

57    It does not follow, however, that the third Tribunal fell into jurisdictional error. Its reasons must be read fairly as a whole. When that is done, I consider that the Tribunal's incorrect view of the effect of the Direction, though stated repeatedly, was peripheral to its reasoning about the applicant's credibility, so that neither the Tribunal's conclusion about his credibility, nor the reasoning by which it reached that conclusion, were illogical, irrational, or legally unreasonable.

58    To summarise that reasoning, as set out above:

(1)    The third Tribunal was concerned about the applicant's 'failure' to raise any fears of harm with the second Tribunal. It had put those concerns to the applicant at the second hearing. It said that the fact that the applicant had not raised non-refoulement obligations with the second Tribunal was relevant because the second Tribunal was directed to take them into account, where relevant, or was required to take them into account: [20], [27] above.

(2)    However when it came to explain the significance of the 'failure' to raise the claims before the second Tribunal, the third Tribunal said that this was because it 'may also cause the Tribunal to doubt the credibility of claims which were not raised in the context of consideration of his visa refusal'. This was said to be in circumstances 'including where the Tribunal was required to consider whether non-refoulement obligations were owed to the applicant if representations to that effect were made by the applicant' (Tribunal para 41 at [27] above, emphasis added; see also s 424A letter at [20] above). That suggests that the Tribunal considered that, while relevant, its view of the necessity for the second Tribunal to deal with non-refoulement was not essential to its concerns. The more fundamental point was that the applicant could have raised non-refoulement with the second Tribunal, but did not.

(3)    When the Tribunal recorded the concern that it put to the applicant at the first hearing, it did not mention its belief that the second Tribunal was required to consider non-refoulement obligations. That was at paragraph 74 (reproduced at [31] above), when the Tribunal simply put to the applicant the fact that the applicant's fears of harm had not been raised in the second Tribunal proceeding, when the applicant had been legally represented, and that this might raise concerns regarding the credibility of his claims to fear harm.

(4)    Similarly, at paragraph 109 (reproduced at [35] above), the Tribunal's concerns about the timing of the applicant raising fears of harm were put on a broader basis, to include the applicant's delay in raising the fears for more than 13 years after he arrived in Australia, for three years after his permanent partner visa was refused, and more than two years after his brother died (or, as the applicant claimed, had been murdered). It is true that the Tribunal put particular emphasis here on the applicant's failure to raise the fears in the second Tribunal proceeding 'where the Tribunal was bound to consider any claims by the applicant to be owed non-refoulement obligations', but the paragraph as a whole shows that its concerns were broader than that.

(5)    That is confirmed by the next paragraph, 110, where the Tribunal addressed the applicant's 'general failure to raise his fears of harm on return to Zambia earlier'. The Tribunal did not consider the applicant's explanations to be 'credible in explaining the very late raising of these claims only after the applicant's permanent partner visa was refused, appeals were exhausted and Ministerial intervention requests had failed'. The Tribunal expressed the view that it would have been reasonable to expect that, if the applicant's fears were genuine, he would have raised the claims 'during prior visa processes, in particular since the refusal of his Permanent Partner Visa in 2018'. It is true that, once again, the Tribunal went on to note in particular the 'reinstatement' proceedings (more correctly, visa refusal review), but in that connection it did not mention any requirement for the second Tribunal to consider non-refoulement, only that (correctly), 'such claims arise for consideration under the Ministerial Direction'.

(6)    The following paragraph, 111, then encapsulates the Tribunal's reasoning. It too is reproduced at [35] above. It speaks for itself and I will not paraphrase or summarise it here. I will only note that it makes no mention of the supposedly mandatory nature of non-refoulement as a consideration before the second Tribunal, and that it places particular weight on the applicant's 'failure to apply for protection for more than two years after his brother's claimed murder' (emphasis added) as 'a strong indication' that the applicant was not to be believed in saying that he was fearful.

(7)    The Tribunal repeated that point towards the end of its consideration of the applicant's claim concerning his inheritance, at paragraph 132 (see [41] above).

59    When this reasoning is considered as a whole, the Tribunal's error does not render illogical or irrational either the reasoning process or its outcome. It was open to come reasonably to the conclusion that the applicant's omission to raise protection claims until the day after his request for Ministerial intervention was not accepted, reflected poorly on the credibility of those claims.

60    As the Minister points out, regardless of Direction 79, it was open to the applicant to raise his fears about returning to Zambia in the second Tribunal proceeding (Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [28]-[30]), and it would have been open to the second Tribunal to have taken them into account as a matter relevant to the grant of the permanent partner visa. And it is evident that underlying the third Tribunal's concerns was the view that a person who genuinely did fear being murdered on return to Zambia would bring that up at the earliest opportunity. That is an intelligible justification for the Tribunal's view that the fact that the applicant did not bring it up reflected adversely on his credibility, and tended against believing that he had the subjective fears that he claimed.

61    The applicant also relies on the reference to paragraph 13 of the 'Guidelines on the assessment of credibility' issued by the Tribunal's Migration and Refugee Division, which appears in the paragraph of the Tribunal's decision that is reproduced at [32] above. Paragraph 13 refers to the requirement in s 423A of the Migration Act, in broad terms, that if a protection visa applicant seeks to rely in the Tribunal on matters not raised with the delegate, the Tribunal is to draw an unfavourable inference about credibility if the Tribunal is satisfied the applicant does not have a reasonable explanation for why those matters were not raised with the delegate. The applicant submits that the fact that the Tribunal referred to that requirement in the context of a situation where protection claims had not been raised with a previous Tribunal, rather than the delegate who decided the protection visa application, reinforces the view that the Tribunal was labouring under a misapprehension of what was required of the applicant in the second Tribunal proceeding. But with respect, I do not consider this adds to the analysis. A passing reference by the Tribunal to one paragraph among several of standard guidelines applicable when it considers protection visa claims is slender support for an inference that it had some misunderstanding of what was required of the applicant in the different context of the second Tribunal proceeding.

62    Counsel for the applicant submitted that the Tribunal was proceeding on the false premise that it was incumbent on the applicant to have raised his protection claims before the second Tribunal. There is some ambiguity in the use of the word 'incumbent' there. To the extent that this means that the third Tribunal thought that there was some kind of obligation on the applicant to raise the claims before the second Tribunal, or that he would lose forever the opportunity to raise them if he did not do so, then that would have been a false premise which could have vitiated the third Tribunal's entire line of reasoning on the credibility of the protection claims. But to the extent that it means that the Tribunal thought that the applicant should have raised the claims, or could reasonably have been expected to raise them, there is nothing illogical about that.

63    In my view, the third Tribunal's reasons as a whole indicate that the latter opinion is the one that it held. The focus of the relevant passages from its reasons is on the second Tribunal's (posited) obligation to take non-refoulement claims into account, not on any obligation by the applicant to raise them. Seen in that light, its mistaken view that the second Tribunal would have been bound to take the non-refoulement obligations into account when determining how to exercise its discretion under s 501 of the Act is of little moment. The view that the applicant could have been expected to raise his fears had they been genuinely held would still have been open on all the material before the Tribunal, and was open in the way that the Tribunal actually assessed that material.

64    Nor do I accept that this amounted to expecting the applicant to act contrary to what was required of him. Direction 79 did not require the applicant to reserve his protection claims to a subsequent protection visa application. The Tribunal was simply acting on the basis that a person with such fears could have been expected to raise them earlier.

65    This directs attention to the applicant's explanation for why he did not raise his protection claims in the second Tribunal proceeding. The Tribunal summarised that explanation accurately at paragraph 45 of its reasons and disposed of it at paragraph 110. The latter paragraph is the focus of the applicant's alternative basis for saying that the Tribunal fell into jurisdictional error, namely that the Tribunal did not give proper, genuine, and realistic consideration to the applicant's explanation of why he did not raise his fears of harm at an earlier time. In that regard, the applicant submits that paragraph 110 is merely a summation of what the applicant had said, followed by a statement of conclusion about what the Tribunal considered it was reasonable to expect.

66    I do not accept that this demonstrates that the Tribunal did not give the point proper, genuine and realistic consideration. I will assume that the point was sufficiently important that it was mandatory for the Tribunal give it consideration of that kind. But even so, it is not enough, as the applicant does, to criticise what is said to be the summary way in which the Tribunal expressed its reasons. What is required is the reality of consideration by the decision maker: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ). The ground does not suggest that the Tribunal fell into jurisdictional error because it gave inadequate reasons.

67    Considered in context, it is clear that the Tribunal was aware of the applicant's explanation. The explanation was given as his response to the s 424A letter, was accurately summarised by the Tribunal at paragraph 45 of its reasons, and was also the subject of a discussion between the Tribunal and the applicant at the first hearing, as recorded at [31] above. It cannot be suggested that the Tribunal either overlooked the explanation or was unaware of its significance.

68    In that context, the Tribunal's treatment of the applicant's explanation at paragraph 110 was sufficient. To repeat it:

…The Tribunal did not regard these explanations to be credible in explaining the very late raising of these claims only after the applicant's Permanent Partner Visa was refused, appeals were exhausted and Ministerial intervention requests had failed. In the Tribunal's view it is reasonable to expect that if the applicant's fears were genuine he would have raised these concerns during prior visa processes, in particular since the refusal of his Permanent Partner Visa in 2018. In particular, it is reasonable to expect the applicant would have raised his claims to fear being seriously or significantly harmed by his family members in the context of his efforts to 'reinstate' his Permanent Partner Visa given such claims arise for consideration under the Ministerial Direction applying to those applications.

69    The Tribunal thought that the fears were raised 'very late'. It thought that they would have been raised earlier, at least after the refusal of the permanent partner visa in 2018. The Tribunal also referred at paragraph 111 to the fact that in the second Tribunal proceeding, the applicant was represented, suggesting that the Tribunal had in mind the likely awareness of the applicant's legal representatives that non-refoulement could have been raised.

70    That is in a context where the Tribunal had earlier specifically noted that the applicant's then-counsel confirmed that non-refoulement issues did not arise and that he did not raise any claims to fear harm from his family members on return to Zambia (see [12] and [18] above). That is quite different to a submission from that counsel that there were protection claims but consistently with Direction 79, the applicant was reserving them for a protection visa application. Counsel for the applicant in this Court submitted that the third Tribunal had incorrectly described what counsel in the second Tribunal said, but with respect I discern no inaccuracy. The third Tribunal said that the transcript in the second Tribunal proceeding indicated that counsel confirmed that non-refoulement issues did not arise. That is precisely what the transcript (excerpted at [12] above) does indicate.

71    Implicit but clear in all this reasoning is an inference that the applicant did not raise the fears because they were not genuine fears, and were contrived only when other avenues to obtain a visa were exhausted. The Tribunal considered that this was likely to be the true explanation, not the one given by the applicant. That line of reasoning was open and demonstrates a genuine engagement by the Tribunal with the explanations given.

72    It is true that the Tribunal did not directly discuss the point the applicant now makes - that he was acting as Direction 79 contemplated he would - but that point was not clearly raised by the applicant before the Tribunal. It would be unrealistically exacting to expect a busy administrative decision maker, needing to deal with a myriad of issues in each decision, to tease out, articulate and expressly engage with a point of that kind, when the applicant did not articulate it himself.

Conclusion

73    While I would not uphold the proposed ground of appeal, it was reasonably arguable and has been fully ventilated. Given the Minister's lack of opposition on grounds other than merit to an extension of time or to leave to rely on a new ground, that extension and that leave will be given. But the appeal will be dismissed, with costs.

Associate:

Dated:    29 July 2024