CEW19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1768 | Case summary | Zoe

CTHFedCFamC2G

CEW19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1768

austlii:cth/FedCFamC2G/2025/1768

FedCFamC2G|2025-10-30

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At a glance

Source facts

Court

FedCFamC2G

Decision date

2025-10-30

Source

Original judgment source is linked above.

Judgment (9 paragraphs)

[1]

The applicant submits that the Tribunal has fallen into material jurisdictional error by making findings which are illogical in the sense that no reasonable decision-maker could have so found, and the Decision is therefore unreasonable. Reliance was placed on Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 and Li at [68].
The findings that are said to be unreasonable are the findings at [32] that the delay in applying for a Protection visa was indicative of not having a genuine fear of harm, and the findings at [51] of the Decision that the applicants did not face a 'real chance' of relevant harm. In relation to the second finding, it was submitted that it was illogical for the Tribunal to accept that persons with links to the Gulenist movement in Turkey were arrested, there have been abductions of persons linked to the Gulenist movement in Turkey, authorities are aware of and monitor Gulenist linked schools in Australia, the second applicant attended a Gulenist school in Australia, the first applicant attended meetings of Gulenists at that time and the Tribunal accepted that the local imam in Australia have been used by the Turkish government to report on Turkish citizens abroad and then to conclude that the risk of relevant harm was not real. It was submitted that theses 'spectacular findings' could not be logically reconciled with a finding that the applicant did not face a real chance of significant or serious harm.
In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [132]- , Crennan and Bell JJ said:

[2]

[132] Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.

[133] However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. There was evidence that the first respondent was married with four children and that he regularly visited Pakistan to see his family after the time at which he said he commenced, as he put it, "the practice of homosexuality" in the UAE. In particular, he visited his family for three weeks before coming to Australia. During the time when he said he engaged in the "practice of homosexuality" in the UAE, and when he visited the United Kingdom, the evidence was that under both civil law and Shari'a in the UAE homosexual activity was criminalised. The first respondent also gave comprehensive evidence of homosexual activity in the UAE which was uncorroborated. The Tribunal saw the first respondent give evidence and sought answers and explanations from him. Such was the evidentiary context in which the Tribunal determined that the first respondent's conduct, first in returning to Pakistan and secondly in failing to seek asylum in the United Kingdom, was conduct which was inconsistent with his claimed fears of persecution as a result of homosexuality.

[134] The process of reasoning followed by the Tribunal, which needs to be considered in the light of all of the evidence set out above, was as follows: the Tribunal appeared to accept that homosexuals as a social group in Pakistan were the subject of persecution. It also appeared to assume that a person with a genuine fear of persecution as a homosexual in Pakistan would not go back to Pakistan and that a person with such a fear would seek asylum at the first available opportunity. The Tribunal then examined the first respondent's conduct in the United Kingdom in 2006 and in returning to Pakistan for three weeks in 2007. The Tribunal asked whether that conduct was consistent with a fear of persecution based on the practice of homosexuality said to have occurred in the UAE. The Tribunal then concluded that the conduct was not consistent with the claims of homosexual conduct said to form the basis for the fear of persecution. The Tribunal essentially found that it was improbable that the first respondent feared persecution because of homosexuality as claimed. It is that conclusion which the Federal Court found illogical and irrational; it would have come to a different conclusion which appears to be largely based on the view that no‑one in Pakistan would necessarily discover that the first respondent had, as claimed, engaged in the practice of homosexuality. The Federal Court differed from the Tribunal in finding that the first respondent's fear of persecution as a result of homosexuality was plausible whereas the Tribunal had found it improbable.

[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

[4]

[35] In this case, the Appellant does not contend that the ultimate outcome was unreasonable, but that certain critical findings of fact were. In Masi-Haini at [54], the Full Court queried, without deciding, whether it was consistent with Djokovic to treat illogicality in the course of making a "critical" finding of fact as a matter going to jurisdiction. In my view, it is: the arguments considered in Djokovic included arguments that there was a lack of evidence or material upon which to found central conclusions of fact within the process of reaching a relevant state of satisfaction: see Djokovic at [31]. Further, the "critical fact" approach is supported by statements by Crennan and Bell JJ that jurisdictional error may be able to be established on the basis of illogical or irrational findings "on the way" to the final conclusion: see Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [54] (Wigney J), citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [132]. This approach also promotes consistency with the closely related principles relating to legal unreasonableness, which applies to both the outcome of the decision and the process by which it is made (including the reasoning that led to that outcome): see Palmer at [101]; Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; (2023) 297 FCR 162 at [81] (Mortimer CJ).

[36] To be clear, this does not mean that any illogical or irrational finding of fact will constitute jurisdictional error: 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: SZXUN at [55]; BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151; (2020) 280 FCR 26 at [29] (the Court); XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 at [63]- [64] (the Court). In this way, the "critical step" approach to the illogicality or irrationality ground has a built-in requirement of materiality, and can be readily accommodated with the High Court's discussion of materiality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [6]: see Masi-Haini at [52]; VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983 at [108]- [109] (Button J).

Parties

Applicant/Plaintiff:

CEW19

Respondent/Defendant:

Minister for Immigration and Citizenship [2025] FedCFamC2G 1768

Legislation Cited (1)

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025

Cases Cited (11)

In the Decision, the Tribunal summarised the applicants' visa history and first applicant's claims for protection (CB 361 [3]-[7]). The Tribunal identified the issues to be determined by it in [9] (CB 361). Despite expressing considerable sympathy for the applicants, the Tribunal was not satisfied that the applicants meet the refugee criteria or the complimentary protection criteria (CB 362 [10]). The Tribunal then explained the reasons for making these findings and the evidence relied upon. The reasoning provided include reference to the Guidelines on the Assessment of Credibility provided to Tribunal members and the cautionary advice to decision makers in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] per Burchett J and the Full Court of the Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 at [13] per O'Connor, Branson and Marshall JJ where the Court said:

On behalf of the applicants, it was submitted that the Tribunal failed to consider each integer of the claims made by the applicants for protection. Reference was made to the decision of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [19] per Mason J and the Federal Court in SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 at [13]-[18] per Perry J. It was submitted that the Tribunal failed to engage seriously with the material before it (see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582 (Plaintiff M1/2021) at [20]-[28] and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [69], [75], [82]-[84]).
It was submitted that the Tribunal failed to consider as credible the explanation for delay of CCL19 in applying for a Protection visa. That explanation was that he was told by a migration agent that the best way to escape persecution was to travel to Australia as a student and that a student visa was simply a means to an end. The end being protection in Australia from those who would harm him in Turkey. This was not expressly raised by the applicants in the claim for protection or the first applicant's evidence before the Tribunal, but the Tribunal found at [32] of the Decision that delay in making an application for a Protection visa weighed against the merits of their claim (CB 375).
The findings in [32] of the Decision were a failure by the Tribunal to consider or engage with the explanation given by CCL19 which was consistent with, rather than contradictory, to the applicants' claims for protection. The Tribunal having referred at [32] to the first applicant's evidence that she and her former husband first came to Australia to educate their children and for her former husband to attend English classes necessarily required the Tribunal to consider the former husband's explanation of why there was delay in seeking a Protection visa (see[25] of the applicants' outline of written submissions). The Tribunal did not engage with the husband's submissions and therefore, erred. If it had done so, this may have affected the findings of fact and the assessment of the first applicant's credibility.

On behalf of the Minister, it was submitted that the Tribunal expressly engaged with the applicants' explanation for delay and the advice that was allegedly given to the applicants. The Tribunal did so in [32] of the Decision and accepted the explanation given, but cast doubt on the applicants' well-founded fear of persecution because viewed objectively, the applicants were more likely to apply for a Protection visa promptly if they had a genuine fear of persecution. It was submitted that that conclusion was open to the Tribunal, logical and reasonable. The Tribunal gave an explanation for the conclusion reached. There was no jurisdictional error of the kind identified by the applicants in ground one of the applications for judicial review. The claim made was considered, as was the applicant's evidence, but it was considered as a factor negating a well-founded fear of persecution. That it was not accepted as plausible by the Tribunal was not a failure to consider or engage with the applicants' claims.
It was also submitted that there was no error by the Tribunal in applying the appropriate legal test. When read as a whole, the Decision reflected the correct approach to the statutory test. The relevant test was identified by the Tribunal in [6] and [9] of the Decision and in Annexure A (CB 361). The Tribunal found in [50] that the applicants would not face a real chance of serious harm, and then explained the reasons for that conclusion in [51] and [76] (CB 384-5). The use of the word 'would' in [51] must be viewed in the context of the findings in [51] as to whether the applicant would be the subject of adverse attention or targeting, not whether there was a real chance of persecution or harm.
Finally, the Decision was not unreasonable, illogical or irrational within the meaning given in cases such as Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [34]. A finding of illogicality or irrationality is not easily made, and the Court should be slow to interfere (Djokovic at [33] and [34]). The Tribunal's reliance on the applicant's delay was not irrational or illogical, but was rationally connected to the credibility of their claims for protection. Delay is a relevant consideration (see Subramaniam v Minister for Immigration and Multicultural Affairs [1998] FCA 305 per Carr J). Delay was one of three reasons given for rejecting the applicants' claims of fear of persecution; the conclusions reached by the Tribunal were not based on delay alone.

A decision-maker charged with the task of considering the criteria for the grant of a Protection visa must engage in an active intellectual process and must read, identify, understand, evaluate and consider the claims or representations provided by the affected person (Plaintiff M1/2021 at [25] and Ali v Minister for Home Affairs [2020] FCAFC 109 at [45]). This includes claims not squarely or expressly raised but which are apparent or clearly arise from the material before the Tribunal (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (NABE) at [58] and [61]).
The applicants submit that the Tribunal failed to consider the explanation given by the first applicant in not applying earlier for the visa. The applicants in their outline of written submissions to this Court rely on the explanation for delay given by CCL19 in the related proceeding. However, that explanation was not part of the evidence presented by the applicants to the Tribunal. In so far as there was evidence given by the first applicant about delay, the Tribunal recorded the evidence at [18] of the Decision (CB 366). The Tribunal then gave four reasons in [29]-[32] as to why the Tribunal found that the first applicant did not suffer from threats or violence from her family (CB 374-5). The Tribunal did not accept that threats were made due to her former husband's religion (which was not referred to in her application for the visa) or for any other reason (CB 374).
The Tribunal did engage with the first applicant's explanation as to why she, her former husband and their children first came to Australia, which was to educate their children and for her husband to attend English classes (CB 375 [32]). There was no evidence given by the first applicant that her former husband left Turkey for fear of persecution or harm, and was using the student visa process because of poor advice (CB 366 [18]). Therefore, this was not a claim that was clearly made, or which fairly arose from the material that was before the Tribunal on the applicants' application for review (NABE at [68]). It could not be said that the former husband's claim emerged clearly from the materials before the Tribunal or the evidence given by the first applicant. The Tribunal did accept in part the first applicant's evidence that she did not think about making an application but was not satisfied that the explanation given explained fully the significant delay (CB 375 [32]). The Tribunal did engage with the first applicant's claims for protection based on her application and the evidence that the first applicant gave together with the submissions made on her behalf, but her husband's explanation made in separate proceedings was not a claim that the Tribunal was required to clearly consider. There was no failure to engage with a claim or jurisdictional error of the kind identified in ground one of the grounds of review.

(2020) 280 FCR 26

(2024) 305 FCR 349

(2022) 289 FCR 21

(2022) 275 CLR 582

(2010) 240 CLR 611

(2023) 297 FCR 162

(2024) 280 CLR 321