Consideration
25 By his first ground of appeal the appellant asserts "jurisdictional error" on the part of the Federal Circuit Court. As the Minister points out this characterisation is inapt in an appeal from that court under s 25 of the Federal Court of Australia Act 1976 (Cth). Putting that to one side, I will, in the circumstances, treat this ground as an assertion of error on the part of the primary judge in dismissing the grounds of review raised before her Honour. The ground framed in that way cannot succeed. There is no error in the decision of the primary judge.
26 The primary judge found, based on the facts before her, that the entry by the Delegate into the ICSE database of the details set out at [18(2)] above was the record for the purposes of, and satisfied the requirements of, s 67 of the Act. That is, a record was made of the Delegate's decision stating the day and time of the making of the decision. Based on that record, the decision was made at 11.01 am on 21 April 2017.
27 In coming to this conclusion and rejecting the grounds of review before her the primary judge followed the decision in DQX16. An appeal from DQX16 was dismissed: see DQX16 v Minister for Home Affairs [2019] FCA 1705 (DQX16 Appeal). In DQX16 Appeal, because the appellant was not legally represented before him, Moshinsky J considered the contentions relating to s 67 of the Act that were relied on before the primary judge in that case notwithstanding that the issue had not been raised on appeal. At [34]-[36] his Honour said:
34 As noted above, the appellant's case before the primary judge was that, in non-compliance with s 67, the delegate's decision failed to state the day and time of its making, with the result that no decision had been validly made by the delegate. It was contended that there was, therefore, no decision to refer to the Authority for review (under s 473CA) and the Authority was also unable to properly determine the operation of ss 473DD and 473DE.
35 A similar argument was considered, and rejected, by Burley J in AEW18 v Minister for Home Affairs [2019] FCA 208 (AEW18), handed down shortly after the appeal hearing in the present matter. Burley J's reasons for rejecting the argument are set out at [35]-[42]. In particular, his Honour reasoned at [37]-[39]:
37 Section 67(1) provides that a decision to grant or refuse a visa are taken to be made "by the Minister causing a record to be made of the decision". Sub-section 67(2) requires that the record must state the day and time of its making. By sub-section 67(3) the decision is taken to have been made on the time and date that the "record" was made. Subsection 67(4) gives the evident reason for precision in maintaining the record, by providing that after that day and time the Minister has no power to vary or revoke the decision.
38 It may be noted that there is a material linguistic distinction between the s 66(2)(c) requirement for the provision of "written reasons" and the s 67(1) requirement that the Minister cause a "record" to be made of the decision. It is the day and the time of the making of the record of the decision, not the written reasons, that s 66(2) requires. The Minister submits that the word "record" is to be given its ordinary English meaning of "a written or otherwise permanently recorded account of a fact or event" (citing the Shorter Oxford English Dictionary, 6th ed, 2007), the fact or event here being the decision to grant or refuse a visa. This is to be contrasted with the "written reasons" identified in s 66. The Minister relies on an affidavit given by an assistant director of the Protection Assessment NSW Section, Humanitarian Program Operations Branch of the Department of Home Affairs, which was admitted into evidence before the primary judge. The affidavit explains that the practice of the Department is to create a permanent record in a database of the fact of a decision having been made under s 65 in relation to a visa application together with the time and day of the decision. The evidence indicates that such a record was created in respect of the decision of the delegate.
39 I accept that the ordinary meaning of the word "record" proposed by the Minister accords with the statutory scheme and suitably defines the subject matter of s 67(1). By creating in the database an entry specifying the day and time of the decision to refuse to grant the appellant's visa, the Minister satisfied his obligations under s 67(2). In this context, the absence of a date and time on the written reasons provided by the delegate is irrelevant.
36 These reasons are equally applicable to the present case. In the present case, as in AEW18, there was evidence that a record was created in a database of the fact of the decision having been made. For the reasons set out by Burley J in AEW18, the primary judge was correct to reject the appellant's contentions regarding s 67.
(Original emphasis.)
28 Those reasons also apply to this case. There was evidence before the primary judge that a record was created in the ICSE database of the fact of the decision having been made which recorded the time and day on which it was made. Thus the Minister satisfied his obligations under s 67(2) of the Act. The absence of a time on the Decision Record is not relevant to the operation of s 67.
29 In AEW18 v Minister for Home Affairs [2019] FCA 208 (AEW18) Burley J also considered and rejected an argument made by the appellant in that case that, by reason of a failure to create a record of a decision, the decision was invalid. At [40]-[41] of AEW18 his Honour relevantly said:
40 … Caution should be exercised in concluding that a referral of an administrative decision for review was invalid on the basis of a technical deficiency. In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481 the High Court considered the nature of a fast track reviewable decision under Part 7AA of the Act. It said at [39], [52] (per Gageler, Keane and Nettle JJ, emphasis added):
39 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd has been aptly described as a "landmark decision" in the early history of the Administrative Appeals Tribunal. The Full Court of the Federal Court there construed the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) to a "decision" in respect of which an enactment might provide for review by that Tribunal as a reference to nothing more than "a decision in fact made, regardless of whether or not it is a legally effective decision". The fundamental reason for adopting that construction was fulfilment of the evident legislative purpose of the conferral of jurisdiction on the Tribunal "to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task": "[i]f administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review" and "technicality would be introduced at the outset". In the context of the Administrative Appeals Tribunal, that construction has not since been doubted.
…
52 The limitations on the form of review for which Pt 7AA provides are in the end insufficient to warrant departure from the Brian Lawlor construction. Applying that construction, a fast track reviewable decision triggering the operation of the Part and forming the subject of the Authority's review is a decision made in fact to refuse to grant a protection visa to a fast track applicant, regardless of whether or not that decision is legally effective.
41 Section 473CA requires the Minister to refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. Section 473BB relevantly defines a fast track reviewable decision to be a fast track decision in relation to a fast track review applicant. The contention advanced by the appellant in the present case is based on the premise that by reason of the failure of the delegate to record the time and date on the written reasons accompanying the notification of the decision outcome, no "fast track reviewable decision" has been made, and accordingly the IAA had no power to make its decision. However, as the High Court records in Plaintiff M174, it is the decision made in fact to refuse to grant a protection visa to a fast track applicant that is the trigger for the operation of Part 7AA. That decision is made pursuant to s 65 of the Act. This trigger operates regardless of whether or not that decision is legally effective. …
(Original emphasis.)
30 Although the primary judge did not dispose of the matter before her on that basis because she did not need to, those observations would apply equally to this case and would provide an alternate basis for disposing of the grounds raised before her Honour.
31 The second ground of appeal is an assertion that the reasons of the Authority "were neither logical nor rational". This ground was not raised before the primary judge and leave is required to raise it for the first time on appeal.
32 In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (VUAX) a Full Court of this Court observed at [46] that leave to raise a new ground on appeal should only be granted if it is expedient in the interests of justice to do so. At [48] the Court said:
The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.
33 There has been no explanation by the appellant for the failure to raise the proposed ground below. The appellant was legally represented before the primary judge and no argument, beyond those relying on s 67 of the Act, was raised that there was otherwise any error in the decision of the Authority.
34 Putting that to one side, the proposed ground has no merit. As framed, it is a bare assertion, general in nature and not particularised. The appellant does not identify how it is that the decision of the Authority is said to be illogical or irrational.
35 In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [49] Wigney J recognised that there may be circumstances where illogicality or irrationality in a decision-making process may justify a finding for an underlying jurisdictional error and that a decision based on irrational or illogical reasoning or factual findings is likely to be legally unreasonable and beyond power. At [50], [52] and [54]-[56] his Honour said:
50 As was made clear by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647-648 [130]-[132], however, not every lapse in logic in the decision-making process will result in jurisdictional error. If particular findings or reasoning on the way to the decision-maker's ultimate conclusion and decision are challenged on the basis of illogicality or irrationality, jurisdictional error will not be made out unless it is shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker. At 648 [131] their Honours said:
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.
…
52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 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.
…
54 ... 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].
55 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) 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) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
56 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) 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.
36 In oral submissions, the appellant gave some meaning to the ground as pleaded by his contention that the Authority ignored the current situation in Sri Lanka when making the finding at [24] of its reasons that the situation for Tamils in Sri Lanka has improved. At [24] the Authority refers extensively to country information. It is well established that the choice of, and weight given to, country information is a matter for the tribunal itself as part of its fact finding: see NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]. It is apparent that the Authority based its findings about the situation for Tamils in Sri Lanka on country information which, as I have observed, it referred to in detail at [24] of its reasons. Its conclusion was open to it based on the materials to which it had regard. The Authority's findings at [24] were neither illogical nor irrational.
37 There is no merit in the proposed ground. As the Minister submitted the interests of the administration of justice do not require a grant of leave to raise the second ground.