Consideration
65 There is an implied condition on the discharge of the Authority's duty under s 473CC of the Migration Act to review a delegate's decision that the review must be undertaken reasonably: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [19]-[20]. The condition of reasonableness is concerned with both the outcome and the process of decision-making, including findings of fact on the way to a conclusion as to whether the jurisdictional facts in s 65 of the Migration Act for the grant of a protection visa are engaged: SZMDS at [132] (Crennan and Bell JJ).
66 There is a corresponding implication that the required threshold of unreasonableness is usually high: Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ), citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ), [52] (Gageler J), [89] (Nettle and Gordon JJ), and [135] (Edelman J). In relation to outcome, the high threshold has been described by reference to a decision which is "so unreasonable that no reasonable repository of the power could have taken the decision or the action": Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 36 (Brennan J). In relation to the process of decision-making, the high threshold has been referred to by asking whether it was open to the decision-maker 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: SZMDS at [133].
67 There are a number of dimensions to the obligation of the Authority to discharge its duty reasonably. One dimension, which is relied on by the appellant in this appeal, is that the Authority's decision must not be the product of a process of reasoning that is illogical or irrational such as to give rise to jurisdictional error. A decision of this character has been explained as being "one at which no rational or logical decision-maker could arrive on the same evidence". However, "[n]ot every lapse of logic will give rise to jurisdictional error", and "a court should be slow, although not unwilling, to interfere in an appropriate case": SZMDS at [130].
68 Decisions of this Court have referred to a threshold of "extreme" illogicality or irrationality: see, for example, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [148] (Robertson J), cited by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [52], which in turn was cited by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [60] (McKerracher, Griffiths and Rangiah JJ). The adjective "extreme" was explained by Robertson J in SZRKT at [148] as meaning "extreme illogicality or irrationality measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal". Robertson J made the same point in the next paragraph, citing Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [23] and its approval in the context of the review of administrative error of the observation of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 48 concerning appellate review of discretionary judgments that "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions" is not a sufficient reason for overturning a judicial decision upon appellate review. The Court in SZJSS also cited in the same paragraph the observation of Brennan J in Attorney-General v Quin at 36 that "[t]he merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone". It is by reference to these well-known considerations that "extreme" is to be understood. As Mortimer J explained in AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [25]-[26], while there is nothing in High Court authorities such as SZMDS which suggests that the adjectival description of "extreme" is a necessary element in a finding of illogicality or irrationality, "irrational" or "illogical" implies that no reasonable person could reason in such a way. In support, Mortimer J cited the following passage from the joint judgment of Crennan and Bell JJ in SZMDS at [135] -
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
69 The above passage in SZMDS is to be read in the context of those that precede it, and in particular [132] which shows that Crennan and Bell JJ were not concerned solely with an ultimate conclusion of jurisdictional fact, but also with findings on the way to such a conclusion: see also, Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 399 ALR 644 at [31] (Gordon J), and SZRKT at [151]-[153] (Robertson J).
70 The application of these principles is illustrated by the authorities concerning the consideration of information given by a visa applicant at an arrival or entry interview. In AYJ17, Moshinsky J at [41]-[43] applied SZMDS in finding that it was illogical or irrational for the Authority to reject the respondent's claim concerning the death of his brother on the basis that he did not mention it at the arrival interview. AYJ17 and its citation of SZMDS were referred to by the Full Court in DWA17 at [30]. The Full Court at [33] accepted that, in some circumstances, a decision-maker may rely on an interview record in such a way as to indicate a misunderstanding of the statutory task, or illogicality or irrationality, and thereby fall into jurisdictional error. However, as I have mentioned, the Full Court in DWA17 also stated that jurisdictional error is notoriously dependent on the facts of the particular case and the proper construction of the statute, and that MZZJO does not stand for any proposition that, regardless of the circumstances, relying solely or primarily on the absence of claims from an entry interview is a jurisdictional error. To that I add my own observation that the caution that decision-makers might bear in mind that is expressed in MZZJO is not a formula or a checklist for the identification of jurisdictional error.
71 I do not accept that it was irrational or illogical for the Authority to reason in the way it did in its rejection of several of the appellant's claims. The starting point is [16] of the Authority's reasons where the Authority stated that it had significant credibility concerns as to: (1) the appellant's claims as to the involvement in the LTTE of his brother and other relatives; and (2) the problems that the appellant claimed he and his family had encountered.
72 Paragraph [17] of the Authority's reasons, on which there was much focus by counsel for the appellant at the hearing, is not to be read in isolation: it is to be read together with the other paragraphs that expose the Authority's path of reasoning. There is no doubt that the Authority placed some weight on what the appellant was recorded as having said at the entry interview. The first point that the Authority made in [17] was that the appellant had not mentioned that he worked in Colombo immediately before he left for Australia, or that he had last lived in Colombo. This was in connection with specific questions concerning the appellant's employment history and places of residence in response to which there was detail in the appellant's recorded answers to which the Authority referred. The second point that the Authority made in [17] was that even accepting that the appellant might have been too scared to mention the involvement of his brother or his relatives in the LTTE, it was significant to the Authority that the appellant had not mentioned that he or his family had faced any harm due to his brother's disappearance.
73 What was recorded in the entry interview was not considered in isolation. The significance that the Authority placed upon the entry interview was built upon with reference by the Authority to the appellant's visa application and statutory declaration, both of which were prepared with the assistance of a migration agent. At [18], the Authority considered it not insignificant that the appellant had not mentioned the involvement of his brother or his relatives in the LTTE in either of these documents. Also at [18], the Authority stated that the appellant had again stated in his visa application that he had lived in one place in Jaffna from birth until he left Sri Lanka, and that he had worked in his home town. The Authority stated that this was consistent with the information that the appellant had provided at the entry interview. At [19], the Authority referred to the appellant's account of his schooling, stating that the appellant had stated in both his entry interview and his visa application that he had attended school in Jaffna up until 2011. The Authority considered that this, together with the fact that the appellant's national ID card that was issued in October 2011 identified his address as being in Jaffna, further undermined the appellant's claim that he was in Colombo for about one year before he commenced his trip to Australia in May 2012, which was the time nominated in the entry interview record for when the appellant started arrangements for travel to Australia. These factors were taken into account together with other factors that did not depend upon the entry interview record, such as the differing accounts as to what had happened to his brother, and the Authority's scepticism that the members of the army attended upon the appellant's family home and harassed and harmed his family as claimed.
74 Having regard to the above analysis, there are five reasons why I am not persuaded that it was irrational or illogical in the sense required by SZMDS for the Authority to rely on the information in the record of the entry interview in the way that it did.
75 The first is that I do not accept that the Authority's consideration of the caution that might be exercised in the appellant's circumstances in relation to the use of what was recorded in the entry interview form was tokenistic, as counsel for the appellant submitted. At [17] of its reasons, the Authority did take account of the possibility that the appellant might, at the time of the entry interview, have been too scared to mention the involvement of his brother or his relatives in the LTTE. However, there is and can be no blanket prohibition on recourse to information in records of entry interview. As the Full Court explained in DWA17 at [32], jurisdictional error is notoriously dependent upon the facts.
76 This leads into the second reason, which is that the features of the record of the entry interview on which the Authority placed significance were not confined to the entry interview. As I have recounted, in the Authority's estimation the same features applied to the visa application and to the statutory declaration which in the Authority's view supported its concerns about the credibility of the appellant's claims. Now it is not always helpful to compare the facts of one case with the facts of another, as Windeyer J so clearly explained in Teubner v Humble [1963] HCA 11; 108 CLR 491 at 503. But I should deal with the submission on behalf of the appellant that the present case is indistinguishable from the decision of Moshinsky J in AYJ17. If it were relevant to do so, AYJ17 is readily to be distinguished. The point of distinction is that the Authority in AYJ17 considered that the absence of information about the appellant's brother's death in an arrival interview was difficult to reconcile with later claims in the entry interview, the visa application and the visa interview: see the extracts at [18] of the reasons of Moshinsky J. The Authority's decision in AYJ17 was illogical or irrational because the rejection of the respondent's claims rested principally on the suggested omission of information in the arrival interview, in circumstances where, as Moshinsky J held at [41], the purpose of the arrival interview was not to obtain a detailed description of the respondent's claims. In the present case, the Authority did not rely solely upon information in the record of the entry interview, but relied on that information together with corresponding information in the protection visa application and the statutory declaration as undermining claims that were later made by the appellant in the protection visa interview.
77 The third reason is that in consequence of the above, I do not accept the other submissions on behalf of the appellant to which I referred at [56] above that were directed to [17] of the Authority's reasons. As to the submission that the Authority erred by identifying that the appellant had been "able to give considerable detail about other matters", on a fair reading this was directed to the detail about the appellant's family, and his places of residence, work, and schooling, which the Authority took into account in the way that I have explained. The point that counsel for the appellant raised might be arguable on a merits review, but it does not indicate irrational or illogical reasoning by the Authority. The same can be said of the Authority's reference in [17] to the passage of one and a half months between the appellant's arrival in Australia and the entry interview. It might be said that the Authority was distinguishing the appellant's circumstances from those referred to in MZZJO at [56], where the Full Court referred to a situation where an entry interview occurs shortly after a person has arrived in Australia, after a long journey on the ocean and in cramped and difficult conditions. The Authority's reasoning in this regard was not irrational or illogical. The same can also be said of the Authority's reference to the presence of a responsible adult at the entry interview. The relevance of the presence of a responsible adult might be debateable, but this goes to the merits of the Authority's analysis, and does not amount to illogical or irrational reasoning.
78 The fourth reason is that I do not accept that the Authority's reference at [8] of its reasons to the appellant's claims with respect to his brother and his family as having "ballooned considerably" as rendering its reasoning illogical or irrational. The descriptor "ballooned considerably" is in a paragraph which is a precursor to the Authority's analysis, and is a label that foreshadows that analysis. The label is not a substitute for the more detailed reasons of the Authority, in respect of which I have found no relevant illogical or irrational reasoning.
79 Finally, I do not accept that the Authority's reasoning was illogical or irrational on the ground that it had found an inconsistency between what the appellant said at the protection visa interview and on the earlier occasions. In AVQ15, to which I referred at [44] above, the Full Court at [27] postulated hypothetical circumstances where a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that was not to say that this was to be correctly described as an inconsistency. That is because, as the Full Court explained at [26], appropriate attention must be given by a decision-maker to all relevant material, which did not occur in AVQ15. The appeal in AVQ15 was allowed because the Refugee Review Tribunal overlooked significant information that was before it which potentially put a different light on its finding of inconsistencies in the appellant's evidence. In this case, it was not put that there was any significant body of information which the Authority had overlooked: that was not the basis on which the appeal was framed or argued. And for the reasons I have given, I am not persuaded that the Authority's reasoning was illogical or irrational. As the Full Court stated in ASB17, to which I referred at [45] above, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person's credibility. In the present case, the Authority set out a path of reasoning explaining why it thought that the information provided by the appellant at the four stages was material to its assessment of the credibility of the appellant's claims.