CAN21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 560

1. By an Application filed in this Court on 22 July 2021 (Application), the Applicants seek judicial review of the decision of the Administrative Review Tribunal (Tribunal) dated 28 June 2021 (Tribunal's Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. In the Tribunal's Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the First Applicant (Applicant) a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that he is a person in respect of whom Australia has protection obligations as outlined in s36(2)(b) or s36(2)(c) of the Migration Act.[1]
3. The hearing of the Application took place at the Melbourne Registry of the Court on 15 April 2025 (Hearing). Both the Applicants and the Minister were represented by solicitors. The Applicants' solicitor appeared via Teams.[2] At the conclusion of the hearing, judgment was reserved. These are the reasons for judgment in relation to the hearing.

1. The issue in dispute is whether the Tribunal erred in the decision that the First Applicant has any basis for fear and persecution upon his return to Country A (a pseudonym) at the time of the Tribunal's hearing on 16 June 2021 (Tribunal Hearing).

1. The Court has before it a Court Book with 654 pages filed by the Minister on 21 March 2025 (Court Book). The Court has reviewed the Court Book in detail. The Outline of the Minister's Submissions, filed 11 April 2025 (Minister's Submissions) accurately summarise the background to this matter at [3] to [16]. The Court adopts those submissions with amendments as follows.
2. The First Applicant is a citizen of Country A.
3. The Applicant's Wife is the Second Applicant in these proceedings, CLE21.
4. The Applicant's Son is the Third Applicant in these proceedings, CLD21.
5. The Applicant arrived in Australia in 2010 as a holder of a 457 Temporary Work Visa arranged by his employer in Country A, Organisation A (a pseudonym). Organisation A organised the First Applicant's secondment for 4 years in Australia.[3]
6. On 8 November 2015, the First Applicant with the assistance of a migration agent, Mr Frank Richter applied for the Visa (Visa Application). The Visa Application included the First Applicant's: statutory declaration; submissions and national police certificate.[4]
7. On 23 October 2017, a Delegate of the Minister refused to grant the Applicants' the Visa (Delegate's Decision).[5] The Delegate was not satisfied that the First Applicant was a person whom Australia has protection obligations of s36(2)(a) or s36(2)(aa) of the Migration Act.
8. On 1 November 2017, the Applicants sought review of the Delegate's Decision before the Tribunal (Review Application).[6] On 13 November 2017, the Tribunal acknowledged receipt of the Review Application and advised the Applicants that material or written arguments should be provided to the Tribunal as soon as possible.[7] On 4 July 2019, the First Applicant provided various new articles and submissions in support of the Application.[8]
9. On 1 June 2021, the Applicant was invited to attend a hearing before the Tribunal on 9 June 2021 (Hearing Invitation).[9]
10. On 7 June 2021, the Applicant's Migration Agent Mr Frank Richter (Migration Agent) submitted by way of email: further submissions dated 5 June 2021, a completed response to the hearing invitation; the Applicant's statutory declaration; and further news articles.[10]
11. On 14 June 2021, the Applicant's Migration Agent by way of email sent the Tribunal a timeline of events for the Member to refer to during the Tribunal hearing.[11]
12. On 24 January 2019, the First Applicant appeared at the Tribunal Hearing with Mr Frank Richter appearing as the Migration Agent.[12]
13. On 21 June 2021, the Applicant's Migration Agent provided further submissions in relation to the criminal law of Country A and further news articles in support of the Application.[13]
14. On 28 June 2021, the Tribunal upheld the Delegate's Decision and provided written reasons of the Tribunal's Decision.[14]

1. The Tribunal's Decision is at 624 to 643 of the Court Book.
2. The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal's Decision [5] to [17].
3. The Tribunal reviewed the evidence provided by the First Applicant. The Tribunal noted that the First Applicant gave evidence at the hearing which was generally consistent with his previous statements to the Department and his Application.[15]
4. The Tribunal Member found many aspects of the First Applicant's evidence acceptable without reservation, citing these at [37].[16]
5. The Tribunal Member specifically rejected the claims in the First Applicant's evidence that he faces any form of loss of liberty or arrest if he were to return to Country A. The Tribunal found that the First Applicant and his family are not likely to face any persecution in Country A due to his role in the publication of anti-government articles in Australia. The Tribunal relies on the fact that Country A's Authorities did not take steps to prevent the First Applicant and his family from return to Australia in July 2015.[17]
6. The Tribunal also found that the Applicants' conduct in 2015 is not consistent with a person with a well-founded fear of persecution.[18]

1. The Application was filed in this Court on 22 July 2021, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 17 March 2025, Orders were made by Registrar Cummings of this Court for the First Applicant to file: written submissions, any Amended Application with proper particulars and any additional evidence.
3. This matter was heard on 15 April 2025 at 10:00am for a Final Hearing before me.
4. The Applicant relied upon the following documents:

(a) The Application filed 22 July 2021;

(b) The Affidavit of the Applicant sworn and filed 22 July 2021 (Applicant's Affidavit);

(c) The Applicant's Amended Application filed 4 April 2025; and

(d) The Applicant's Written Submissions, filed 4 April 2025 (Applicant's Submissions).

(a) The Response, filed 10 August 2021; and

(b) The Minister's Submissions filed 11 April 2025; and

(c) A List of Authorities filed 11 April 2025.

1. Both parties relied on the Court Book.
2. The Amended Application contains one ground of review (Grounds of Review):
   1. The Tribunal erred when it found as follows: 'These matters may all be true, and I accept the applicant's evidence in relation to his background. However, taken at their highest, I do not consider the matters set out above at [37](a) to (i)constitute a situation in which the applicant has any basis to fear persecution upon his return to Country A (Ground 1).

Particulars

1. The country information available before the Tribunal confirmed that 'journalists and editors who transgressed officially sanctioned lines risk official discrimination in the form of harassment, which may include loss of employment or imprisonment, depending on the perceived severity of the transgression.

2. That independent and corroborative information was undermined by adverse findings of credibility said to arise from first the fact of the First Applicant being able to leave [Country A] in July 2015 and second the failure to immediately apply for protection upon his return to Australia.

(Words in bold added, otherwise as written).

1. The First Applicant submits that there are no issues arising in respect to jurisdiction or the timeliness of the Application. However, the First Applicant does contend that the Tribunal's decision was affected by jurisdictional error.
2. The Applicant sought protection in Australia on the basis of his status as a citizen of Country A working in the roles described in [24] of the Tribunal's Decision and his involvement in the publication of articles that were critical of various aspects of Country A's government and governance.
3. The Applicant sought to rely on one ground in the Amended Application dated 4 April 2025.
4. The Applicants' submit that the Tribunal's findings in relation to the First Applicant's credibility and lack of "any basis to fear persecution" is prima facie illogical when considering the evidence put forward before the Tribunal.
5. The Applicants' submissions state that the Tribunal misinterpreted the Applicants' ability to leave Country A and return to Australia, and the delay in applying for protection as a misconstruction of the facts leading to adverse findings.
6. The Applicants contends that issue in dispute is whether the First Applicant and his family's departure from Country A at the time compounded with the type of harm that may be suffered as per the DFAT country information report concerning Country A 2019 (Country Information), could reasonably explain the First Applicant's need for protection in Australia. The First Applicant contends that no adverse inference arises.

1. The Minister submits that the Tribunal's reasoning was not affected by jurisdictional error. In particular, the Tribunal decision is a "private clause decision" within the meaning of Part 8 of the Migration Act, and that the Application must be dismissed with costs.
2. In response to the sole ground of review put forward by the Applicants, the Minister submits that the Tribunal's statutory task was to come to the necessary state of satisfaction under s 65 of the Act as to whether the First Applicant met the criteria necessary for the grant of a Protection Visa. This satisfaction informed the binary question of whether the First Applicant should be granted or refused the visa under s 65(1) of the Act.
3. The Tribunal's findings of fact do not enliven the Court's supervisory jurisdiction under s 476(1) of the Act.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[19]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[20]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[21] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[22] Different kinds of error may overlap.[23] The categories are not closed.[24] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[25]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[26] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[27] It has been described as an "undemanding" standard.[28]

1. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
2. The criteria that the Applicant was required to satisfy for the grant of a Protection visa (Subclass 866) are set out in cl 866.1 to 866.6 in Schedule 2 of the Regulations.

The Tribunal erred when it found as follows: 'These matters may all be true, and I accept the applicant's evidence in relation to his background. However, taken at their highest, I do not consider the matters set out above at [37](a) to (i) constitute a situation in which the applicant has any basis to fear persecution upon his return to [Country A].

1. The following "particulars" are given of Ground 1:
   1. The country information available before the Tribunal confirmed that '[specified persons] who transgressed officially sanctioned lines risk official discrimination in the form of harassment, which may include loss of employment or imprisonment, depending on the perceived severity of the transgression.'2
   2. That independent and corroborative information was undermined by adverse findings of credibility said to arise from first the fact of the First Applicant being able to leave [Country A] in July 2015 and second the failure to immediately apply for protection upon his return to Australia.
2. Footnote 2 to particulars (a) refers to [34] of the Decision.
3. Ground 1 refers to [37](a) to (i) of the Tribunal's Decision, which sets out various aspects of the Applicant's evidence that the Tribunal specifically accepted.
4. Immediately following [37] (at [38]) was the statement referred to in Ground 1:

These matters may all be true, and I accept the applicant's evidence in relation to his background. However, taken at their highest, I do not consider the matters set out above constitute a situation in which the applicant has any basis to fear persecution upon his return to [Country A]...

1. The decision under review was a decision made by a Delegate of the Minister to refuse to grant the Applicants a Protection (Class XA) (Subclass 866) Visa under s 65 of the Migration Act. The question for the Tribunal was whether it was satisfied[29] that the First Applicant was a person to whom Australia has protection obligations as set out in s 36(2)(a) or (aa) of the Migration Act and was not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the Applicant.[30]
2. The dispositive issue in relation to the Tribunal's Decision was whether the First Applicant had a well-founded fear of persecution at the relevant time within the meaning of s 5J(1) of the Migration Act; noting that the Second and Third Applicants' claims depended upon the First Applicant successfully establishing his claim that he is a person in respect of whom Australia has protection obligations as outlined in s36(2)(b) or s36(2)(c) of the Migration Act.
3. The Tribunal's conclusion that the matters in [37] do not constitute a basis for the First Applicant to fear prosecution upon his return to Country A was directed the question of whether there was a "real chance" of persecution on the grounds claimed. It has been held that the objective element ("real chance... the person would be persecuted...") requires the decision maker to estimate the likelihood of the event occurring (persecution), a future matter, based upon the material before it, which may include evidence as to what has happened in the past.[31]
4. The substance of the complaint set out in Ground 1 appears to be that the Tribunal's conclusion (at [51]) that there was not a real risk of persecution as a consequence of being returned to Country A, was inconsistent with the information contained in the Country Information, or conclusions to be drawn from that information when coupled with the facts as found at [37] of the Tribunal's Decision, or to put it another way, that the Tribunal's Decision was irrational, illogical or unreasonable. The First Applicant also takes issue with the use by the Tribunal of the First Applicant's departure from Australia and his failure to apply for a protection visa immediately upon his return from Country A in 2015, in making what are characterised as "adverse findings of credibility".
5. As to the role of the court and principles to be applied on judicial review where a challenge is made to the decision maker's reasoning, findings of fact or conclusion:[32]

(a) In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ confirmed that the proper role of the court on a judicial review was not to review the merits of the administrative decision-maker.[33]

(b) Kirby J stated (at p 291) that:

The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the propsect that a verbal slip will be found warranting inference of an error.

(Emphasis added) (Footnotes omitted)

(c) In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) held (at [69]) that s 430 of the Migration Act obliged the Tribunal to set out findings on material questions of fact to the conclusion it reached. It does not require the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make.

(d) In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593, the Full Court of the Federal Court (French, Sackville and Hely JJ) stated:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

(Emphasis added)

(e) In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), Crennan and Bell JJ stated:

In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

(Emphasis added)

(f) In Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 (SZJSS), French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ held (at [33]) that the weighing of evidence was a matter for the Tribunal.

(g) In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, the Full Court of the Federal Court (Kenny, Griffiths and Mortimer JJ) stated:[34]

The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made ... Representing as it does what the Tribunal itself considered important and material, what is present - and what is absent - from the reasons may in a given case enable a Court on review to find jurisdictional error ...

... The Tribunal's reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

(Emphasis added)

(h) In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, Robertson J held (at [77] and [111]) that the question of whether a failure to consider evidence gives rise to jurisdictional error:

... is a case specific inquiry and it is not one which should be analysed by reference to fixed categories or formulas, to the effect that a decision within a category or formula is always or is never affected by jurisdictional error... the fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.

(Emphasis added)

(i) In Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 (Li), Hayne, Kiefel and Bell JJ stated:

The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that "all these things run into one another". Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

(Emphasis added)

(j) In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J stated:

As Robertson J put it in Minister for Immigration and Citizenship v SZRKT(2013) [2013] FCA 317; 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality or irrationality must be shown, "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions". And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

...

...The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings "on the way" to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship [2013] FCA 566; (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

(Emphasis added)

(k) In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, Allsop CJ (with whom Wigney J agreed) stated:

The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.

(Emphasis added)

(l) In Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550, Kiefel CJ, Bell, Keane, Gordon and Edelman JJ stated:

A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power".

(Footnotes omitted) (Emphasis added)

(m) In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, Kiefel CJ, Keane, Gordon and Steward JJ stated:

None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision maker's reasons disclose that the decision maker ignored, overlooked or misunderstood relevant facts and materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(Footnotes omitted)

1. Returning to the present case, the first point to note is that the Tribunal did summarise those parts of the Country Information that it considered relevant at [28] to [36], and hence it cannot be said that it ignored that information. In fact, Ground 1 is premised upon the accuracy of Country Information recorded at [34] of the Tribunal's Decision.
2. The Applicants' complaint would appear to be that the Tribunal did not apply the Country Information despite accepting certain "core matters" from the First Applicant's evidence (at [37]), including involvement in the publication of articles that were considered critical of Country A's governance, being criticised by Country A's authorities, being warned, and having his contract of employment prematurely terminated.
3. The Tribunal's acceptance of the matters set out at [37] of the Tribunal's Decision coupled with the Country Information recorded at [34] of the Tribunal's Decision did not compel the conclusion that there was a "real risk" of persecution if he were to return to Country A, such that a contrary conclusion would be illogical or irrational or unreasonable. In particular, the Country Information is expressed in general terms. It does not address the particular circumstances of the First Applicant's case.
4. Those particular circumstances, included the following facts as found by the Tribunal:[35]

(a) the First Applicant was never charged with an offence, he was not currently awaiting legal action, he was not subject to any arrest warrant upon his return;

(b) the First Applicant had no criminal records during his residence in Country A dated 2 July 2015;

(c) the First Applicant's employment was not interfered with despite the 2012 warning and his evidence to the effect that his conduct remained unchanged as a result;

(d) the First Applicant's employment was not interfered with until 2015;

(e) the First Applicant was permitted to travel between Australia and Country A on multiple occasions; and

(f) Country A's authorities took no steps to prevent him from returning to Australia in July 2015.

1. Even accepting the Country Information summarised at [34], the Tribunal's Decision could be explained on the basis that the perceived severity of the transgression by the Applicant was not such as to give rise to a risk of persecution of the relevant type. Such a conclusion is implicit[36] the Tribunal's reasons for rejecting the First Applicant's claimed fear of persecution at [39] to [43] and was open on the evidence before the Tribunal.
2. As in SZMDS, reasonable minds may reach different conclusions from the Country Information and the evidence summarised at [37] of the Decision. I am not satisfied that the Tribunal's conclusion at [51], concerning the question of whether there was a real chance that, if the First Applicant returned to Country A, he would be persecuted for the claimed reason, was illogical or irrational or unreasonable in the sense described in the authorities like SZMDS.[37]
3. Ultimately, the weight to be given to the Country Information when coupled with other evidence, was a matter for the Tribunal to determine as part of its fact-finding function.[38] I do not consider that the Tribunal's failure to draw the conclusion contended for by the Applicants, constituted a jurisdictional error.
4. On the question of whether a decision is affected by jurisdictional error by reason of erroneous findings as to credibility of an applicant or witness:

(a) In Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405, McHugh J rejected a challenge to the Tribunal's adverse finding concerning the prosecutor's evidence on the basis that "a finding on credibility... is the function of the primary decision maker par excellence." (at [67]).

(b) In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J stated:

An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal's findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

(Emphasis added)

(c) In ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 the Full Federal Court (Griffiths, Perry and Bromwich JJ) summarised the relevant principles (discussed in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496) at [83]:

McHugh J's oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary Judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;

the issue whether or not a credibility finding is tainted by jurisdictional error is "a case specific inquiry" and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);

in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and

without derogating from what is said above regarding the danger of relying too heavily on "fixed categories or formulas" (which includes the danger of blindly repeating McHugh J's comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:

• failure to afford procedural fairness;
• reaching a finding without a logical or probative basis;
• unreasonableness; and/or
• other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] 233 FCR 451; [2015] FCA 1089 at [20]-[21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]-[42].

(d) In BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 the Full Court stated (at [34]):

...Furthermore, findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error: SZMDS at [132] (Crennan and Bell JJ). This is particularly so where, relevantly, the adverse credibility finding was a critical step in the Tribunal's decision that it was not satisfied that an applicant met the criteria for the grant of a visa: DAO16 at [30(4)] (approving Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [56] (Wigney J)).

(Emphasis added)

1. I turn then to the complaint relating to "adverse findings of credibility" based upon the First Applicant's departure from Australia and failure to immediately apply for a protection visa upon his return (esp. at [41]). I consider that the Tribunal's conclusion that "the Applicants did not fear persecution in [Country A] and his intention upon his return was to secure further employment in Australia, rather than seek protection from [Country A's] authorities" was a conclusion that was reasonably open to the Tribunal as the finder of fact. It was a conclusion that had a logical and probative basis in the matters set out at [40] and [41] of the Tribunal's Decision. Support for this is found in Selvadurai v Minister for Immigration and Ethnic Affairs and Another (1994) 34 ALR 347 at [11], where it has been recognised that a delay in lodgement of an Application for a protection visa is a legitimate factual argument to be taken into account in assessing the genuineness or depth of the Applicants' claimed fear of persecution.[39]
2. There was a suggestion that the Tribunal treated the failure to "immediately" apply for a protection visa automatically (my characterisation of the Applicants' submission) by way of disqualifying criteria. I am unable to discern such an approach in the reasons of the Tribunal. To the contrary, the Tribunal appears to weigh the evidence of delay against the Applicants' alternative explanation (namely "due to legal advice at the time"), and to have made a choice between competing explanations.[40] Reference was made to s 367A of the Migration Act relating to new claims or evidence before the Tribunal, but as the solicitor for the Applicants acknowledged, this provision had no application to the facts before the Tribunal, and I do not consider that it advanced his contention of jurisdictional error.
3. The Second and Third Applicants' Applications are dependent upon the success of the Application so far as it concerns the First Applicant. Having determined that there was no jurisdictional error in relation to the Tribunal's Decision as it pertains to the First Applicant means that the Application as it pertains to the Second and Third applicant must also fail.
4. I am not satisfied that jurisdictional error is made out by reference to Ground 1.

1. At the hearing, I drew to the parties' attention a number of apparent errors in the Tribunal's Decision:

(a) The use of the pronoun "her" to refer to the Applicant twice in [50], when in other parts of the Decision, including in [50], the Applicant is referred to, correctly, as "him".

(b) The reference to the claim that the Applicant was tortured in detention at [51(a)], when there was no evidence before the Tribunal that he had ever been in detention or tortured.

(c) The reference to the harassment of the Applicant's family, and a letter from the Applicant's father which were not in the court book (at [51](d)).

1. Counsel for the Minister candidly accepted that the whole of paragraphs [50] and [51] of the Tribunal's Decision is not applicable to the Application it was considering. I would speculate that those paragraphs were cut and pasted, or perhaps artifacts left from a precedent from which the reasons were created. The factual matters recorded and reasoning are completely inapplicable and extraneous to the decision made by the Tribunal.
2. The solicitor for the Applicants initially advised me that he wished to amend the Application, so as to raise a new ground of review based upon the apparent copying identified above. Counsel for the Minister indicated that the Minister did not oppose the amendment. At 10:33 a.m., I stood the matter down until 2:15 p.m. to give the Applicants the opportunity to prepare a draft amended application to be circulated by 1:00 p.m. Before I stood the matter down, I referred the parties to the decisions in SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 and CFC16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 100.
3. Prior to resumption, the Minister circulated a list of the following relevant authorities: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p 66 and p 72; Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 287 ALR 523 at [22], [50]-[51]; Minister for Immigration, Citizenship, Multicultural Affairs v ERY19 [2021] FCAFC 133; (2021) 285 FCR 540 at [123]- [125]; BEG21 v Minister for Home Affairs [2022] FCA 633 at [26], [62]-[68] and CFC16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1003 at [87]- [94].
4. On the resumption of the hearing, the solicitor for the Applicants confirmed that he did not seek to press the application for leave to further amend the Application as had been foreshadowed in an email to my chambers received at 11:15 a.m. Therefore, it is unnecessary for me to consider the matter further.

1. As the Applicants have not established that the Tribunal made a jurisdictional error, the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that that the Application succeeded or was dismissed. In the event the Application was dismissed, the Minster sought costs in the sum of $8,371.30, being the scale amount.[41] I am satisfied that costs ought to follow the event,[42] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[43]

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[2] Orders made by Judge Fary dated 8 April 2025.

[19] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

[20] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O'Callaghan JJ at [17].

[21] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

[22] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 (LPDT) at [3].

[23] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].

[25] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].

[27] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[28] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).

[29] Section 65(1) of the Migration Act.

[30] s 36(2)(b) and s 36(2)(c) of the Migration Act.

[31] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 1997 CLR 559 at 571-573.

[32] Noting that different kinds of error may overlap: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].

[33] See also Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] - [54].

[37] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [72].

[38] Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 580 [197] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33].

[39] See also CAQ18 v Minister for Home Affairs [2019] FCA 603 at [54].

[41] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

[42] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[43] Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172.