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BYA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 698 (11 May 2021)

Last Updated: 11 May 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 698

File number(s):
ADG 146 of 2018


Judgment of:
JUDGE DRIVER


Date of judgment:
11 May 2021


Catchwords:
MIGRATION –Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Pakistan – applicant’s fears found not to be well-founded – whether the Authority failed to deal with a claim of economic hardship or acted unreasonably in dealing with an incomplete record of interview considered – no jurisdictional error.


Legislation:


Cases cited:
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 94 ALJR 928
Applicant WAEE v Minister for Immigration and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Avon Downs Pty Ltd v Federal Commission for Taxation [1949] HCA 26; (1949) 78 CLR 353
BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
BEL18 v Minister for Home Affairs [2018] FCA 2103
BJO18 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
DVD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 332
DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160
EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 174
ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44
FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369
Minister for Home Affairs v DUA16 (2020) 95 ALJR 54
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319
Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124; (2017) 253 FCR 115


Number of paragraphs:
80


Date of hearing:
9 April 2021


Place:
Sydney


Counsel for the Applicant:
Mr J King


Solicitors for the Applicant:
Varess


Counsel for the Respondents:
Ms K Hooper


Solicitors for the Respondents:
Australian Government Solicitor


ORDERS
ADG 146 of 2018

BETWEEN:
BYA18
Applicant
AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
11 MAY 2021



THE COURT ORDERS THAT:

  1. The application as amended on 13 December 2019 is dismissed.


REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

  1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 6 February 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
  2. The following statement of background facts is derived from the submissions of the parties.
  3. The applicant is a male citizen of Pakistan who arrived in Australia on 16 April 2013 as an unauthorised maritime arrival. On or about 8 July 2016, he applied for a Safe Haven Enterprise Visa (SHEV).[1] The applicant claimed to fear harm in Pakistan because of his Christian religion.[2] On 24 May 2013, the applicant participated in an entry interview. His claims, as summarised by the delegate, included that he had suffered persecution as a Christian in Pakistan, including discrimination against him for that reason throughout his whole life, from his time as a child in primary school through to his work as an adult. He also claimed that, to escape that persecution, he left Pakistan to work in Saudi Arabia, and that there are no employment opportunities for him in Pakistan.[3]
  4. On 23 May 2017, the delegate refused to grant a the applicant a SHEV.[4]
  5. The delegate accepted that the applicant is a Pakistani citizen of the Christian faith, and that he may have suffered discrimination against him as a Christian in Pakistan, but did not accept that there were no employment opportunities for him there.[5] The delegate quoted a report to the effect that persons who are persecuted by non-State actors can generally relocate to escape that risk, and to the effect that “Christians in Pakistan are a religious minority who, in general, suffer discrimination but this is not sufficient to amount to a real risk of persecution”, and appears to have treated those quotations as dispositive of the applicant’s particular claims. The delegate found that the applicant would be able to relocate safely to an alternative location.[6]
  6. The delegate’s decision was referred for review by the Authority which, as noted above, affirmed it.

THE CURRENT PROCEEDINGS

  1. These proceedings began with a show cause application filed on 17 April 2018. The applicant now relies upon an amended application filed on 13 December 2019. There are two grounds in that application as amended:
    1. The Authority erred in law and constructively failed to exercise jurisdiction insofar as the Authority failed to consider and respond to the applicant’s claim that he fears serious harm in Pakistan in the form of significant economic hardship that threatens his capacity to subsist and denial of capacity to earn a livelihood of any kind that threatens his capacity to subsist.
Particulars
a. The applicant claimed in his entry interview that:
i. he is Catholic (CB16) and a Christian (CB24);
  1. the main reason he left Pakistan to go to Saudi Arabia was because in Pakistan “people dont have a good behaviour towards Christians for example if I go to work and a person comes to know I am Christian they will fire me” (CB24);
  2. he lost his job in Saudi Arabia because his boss’ son told him to convert to Islam; (CB24)
  3. if he is returned to Pakistan, then “[b]ecause of my religion I will not be able to work so everyone will die from hunger” (CB29).
b. The applicant claimed in his statutory declaration (CB65) accompanying his protection visa application that:
i. he left Pakistan because he was a Catholic in a Muslim country;
  1. due to abuse at school he stayed at home and helped his father on their farm;
  2. when he was about 12 years of age he started looking for a job in the village;
  3. “Everywhere I went I was told that they would not accept me because of my Christianity”;
  4. he decided to learn tailoring from his cousin who had a shop in his village, but he was still “unable to find work” and “still suffered persecution because of my religion so my parents told me to join my older brothers who had gone to Saudi Arabia looking for work” (CB65).
  5. The Delegate found that, before the applicant left Pakistan for Saudi Arabia, he “was discriminated against as a Christian” (CB96).
  1. In written submissions to the Authority, the applicant’s migration agent cited country information to the effect that “the majority of [Christians in Pakistan] live on the edge of society, deprived of an education, struggling to find jobs and unable to afford living elsewhere” (CB105). The Authority was not satisfied that there were exceptional circumstances to justify considering that information (CB137 [7]).
e. The Authority noted that the applicant had claimed that:
  1. “[h]e had difficulty finding work in his village [in Pakistan] due to his religion” (CB139 [18]);
  2. even after learning tailoring from his cousin, he “still had trouble finding work [in Pakistan] and continued to experience persecution due to his religion” (CB139 [18]); and
  3. “[h]e lost his job in Saudi Arabia when he refused to agree to his employer’s son’s demand that he convert to Islam” (CB140 [18]).
  1. The Authority erroneously found that, when interviewed in relation to his protection visa application, “the applicant did not refer to any difficulties securing employment when asked whether anything had happened to him in Pakistan because he was a Christian” (CB142 [29]), when in fact the applicant had referred to such difficulties.
  2. The Authority stated that the finding in (f) above “leads me to question the applicant’s claims that he had difficulty finding work in Pakistan due to his Christian faith” (CB142 [29]).
  3. The Authority erroneously found that, “during the entry interview, the applicant appeared to refer to a hypothetical situation in which, were he employed and his Christianity discovered in the course of that employment, he would be fired” (CB142 [29]), when in fact the applicant had referred to a real situation in which his Christianity was discovered in the course of his employment and he himself was fired.
  4. The Authority stated that because the example given in (h) above was only hypothetical and not an example of his own experience of mistreatment related to religion, the Authority was “satisfied that the applicant was not fired from any employment because of his Christian faith” (CB142 [29]).
  5. The Authority did not refer to the applicant’s claim that, if he is returned to Pakistan, then “[b]ecause of my religion I will not be able to work so everyone will die from hunger” (CB29).
  6. The Authority misunderstood and unreasonably failed to consider and respond to the applicant’s claims in paragraphs (a) and (b) above.
  1. In the premises, the Authority failed to conduct the “review” required by s 473DB(1) of the Act and constructively failed to exercise jurisdiction.
  1. Insofar as the Authority made findings adverse to the applicant based on omissions from his arrival (aka entry) interview in circumstances where the Authority knew that its record of that interview was incomplete, the Authority erred in law and its decision was unreasonable and the Authority unreasonably failed to consider exercising power under s 473DC of the Act.
Particulars
  1. The applicant’s arrival interview started at 11:50am and concluded at 3:09pm, with a meal break between 1:05pm and 1:41pm (CB12).
  2. The interviewer told the applicant that “[t]his interview will be recorded” (CB12), and conducted the interview on that basis.
  1. For reasons unknown, the audio recording of the applicant’s arrival interview provided to the Authority ends at the commencement of the meal break, and omits the second half of the interview (approximately 1 hour 28 minutes).
  1. The Authority knew that it did not have the whole recording of the applicant’s arrival interview and that, accordingly, its record of the evidence given by the applicant during his arrival interview was incomplete. The Authority’s knowledge is to be inferred from the Authority’s letter to the first respondent’s department (Immigration) dated 31 May 2017, in which the Authority stated: “The arrival interview recording was paused for lunch break at 1 hour 14mins; we do not seem to have received the concluding part of the arrival interview recording in the referred documents. Please provide a copy of the arrival interview recording to the IAA.” Immigration replied that “there is no other recording available for the client”.
  2. The Authority made the following adverse findings to the applicant (CB142 [28]):
    1. “[t]he limited and unspecific nature of the applicant’s evidence in relation to his claimed mistreatment due to his religion in his village in his ... entry interview” “leads me to question his claims in his SHEV application to have experienced almost daily verbal abuse and physical attacks in his village”;
      1. “I find it difficult to accept that if he had in fact experienced these events, he would not have mentioned them when asked about his reasons for leaving Pakistan during the entry interview”.
  3. The Authority knew that the delegate had also interviewed the applicant and had not made those adverse findings. The Authority did not interview the applicant.
  4. It was unreasonable for the Authority to make adverse findings to the applicant in those terms in relation to omissions from his arrival interview in circumstances where the Authority knew that its record of that interview was incomplete.
  5. Alternatively, it was unreasonable for the Authority to fail to consider exercising power under s 473DC to get information or to invite a person to give information in circumstances where the Authority knew that its record of the arrival interview was incomplete and the Authority was minded to act upon omissions from it. (For example, getting or inviting information about what was said during the second half of the arrival interview, either from the applicant or from the Immigration officer who interviewed him, ... (CB12) or both.)
  1. The application was filed outside the period prescribed in s 477(1) of the Migration Act 1958 (Cth) (Migration Act) and the applicant sought an extension of time under s 477(2). The applicant’s affidavit made on 16 December 2019 was read in support of the application for an extension of time. The Minister consented to the extension of time, but I nevertheless satisfied myself that the extension of time was necessary in the interests of the administration of justice, having regard to the relatively short period involved, the explanation provided by the applicant and the merit in the amended application.
  2. The affidavit of the applicant’s solicitor made on 13 December 2019 was read in support of the second ground in the application.
  3. I also have before me as evidence the court book filed on 8 June 2018.
  4. This matter was originally filed in the Adelaide registry of the Court but was transferred to the Sydney registry for hearing by me.
  5. Both the applicant and the Minister filed pre hearing written submissions and made oral submissions through their counsel at the trial on 9 April 2021. I have been assisted by those submissions.

CONSIDERATION

Ground 1 – was there a constructive failure of jurisdiction by the Authority in relation to the applicant’s claims concerning economic hardship threatening his capacity to subsist and a denial of capacity to earn a livelihood?

Applicant’s contentions

  1. The applicant contends that, for three reasons, the Authority committed jurisdictional error insofar as the Authority failed to consider and respond to the applicant’s claim that he fears serious harm in Pakistan in the form of significant economic hardship that threatens his capacity to subsist and denial of capacity to earn a livelihood of any kind that threatens his capacity to subsist.
  2. First, the applicant expressly and consistently made that claim on multiple occasions.
  3. In his entry interview, the applicant:
(a) claimed to be Catholic[7] and a Christian;[8]
(b) explained that the main reason he left Pakistan to go to Saudi Arabia was because “[i]n Pakistan people don’t have a good behaviour towards Christians for example if I go to work and a person comes to know I am Christian they will fire me”;[9]
(c) also explained that, having been forced to leave Pakistan to find work in Saudi Arabia, he then also lost his job in Saudi Arabia because his boss told him to convert from Christianity to Islam and he refused;[10] and
(d) expressly answered, when the interviewer asked what he thought would happen to him if he were to be returned to Pakistan, “Because of my religion I will not be able to work so everyone will die from hunger”.[11]
  1. In the statutory declaration accompanying his protection visa application, the applicant claimed:
(a) that he left Pakistan because he was a Catholic in a Muslim country;
(b) he began school when he was five years old, but “left after two years because the Muslim pupils kept telling me that I should convert to Islam. Some of them hit me. They kept saying that I would never go to Paradise when I died unless I was a Muslim. They refused to play with me or sit near me in the class room. They called me infidel. After two years I left school because I could not put up with the fighting and bad words they said to me.” He then stayed at home and helped his father on their farm;
(c) when he was about 12 years old, he started looking for a job in the village: “Everywhere I went I was told that they would not accept me because of my Christianity”;
(d) he decided to learn tailoring from his cousin who had a shop in his village, but even then, he was still “unable to find work” and “still suffered persecution because of my religion so my parents told me to join my older brothers who had gone to Saudi Arabia looking for work”; and
(e) even in Saudi Arabia, the applicant’s employer told him that “he would kick me out of the job if I did not convert to Islam”. The applicant stated that, “I always felt unaccepted and unhappy because I had no intention of changing my religion”.[12]
  1. The applicant’s claims to that effect are said to have been express, clear, and consistent.
  2. Secondly, the applicant contends that the Authority failed to consider and respond to those claims.
  3. The Authority noted the applicant’s claims that “[h]e had difficulty finding work in his village [in Pakistan] due to his religion”;[13] that even after learning tailoring from his cousin, he “still had trouble finding work [in Pakistan] and continued to experience persecution due to his religion”; and that “[h]e lost his job in Saudi Arabia when he refused to agree to his employer’s son’s demand that he convert to Islam”.[14]
  4. Importantly, however, the Authority then stated, (erroneously, in the applicant’s submission) that when interviewed in relation to his protection visa application, “the applicant did not refer to any difficulties securing employment when asked whether anything had happened to him in Pakistan because he was a Christian”.[15] The applicant submits that he expressly claimed to have experienced such difficulties. He elaborated on his experience of those difficulties in the statutory declaration accompanying his protection visa application, as submitted at [16] above.
  5. That error is said to have led the Authority “to question the applicant’s claims that he had difficulty finding work in Pakistan due to his Christian faith”,[16] but on a fair reading of the applicant’s claims and supporting evidence, it was the Authority’s own misunderstanding of his claims and evidence that is said to have led it to question those claims.
  6. In particular, the applicant submits that the Authority erroneously found that, “during the entry interview, the applicant appeared to refer to a hypothetical situation in which, were he employed and his Christianity discovered in the course of that employment, he would be fired”,[17] when in fact the applicant had referred to real situations in which his Christianity was discovered in the course of his employment and he himself was either refused employment or fired.
  7. The Authority stated that, because the example mentioned above was only “hypothetical” and not an example of his own experience of mistreatment related to religion, it was “satisfied that the applicant was not fired from any employment because of his Christian faith”.[18] The applicant submits that, on a fair reading of his claims and supporting evidence, it was the Authority’s own misunderstanding of his claims and evidence that led it to reach that conclusion. The applicant submits that no fair or reasonable reading of the applicant’s claims and evidence could justify the conclusion that the experiences described by the applicant throughout the totality of the application process were proffered by him merely as “hypotheticals” rather than as a statement of his own experience.
  8. In written submissions to the Authority, the applicant’s migration agent also cited country information to the effect that “the majority of [Christians in Pakistan] live on the edge of society, deprived of an education, struggling to find jobs and unable to afford living elsewhere”.[19] The Authority was not satisfied there were exceptional circumstances to justify considering that new information.[20] It did not refer to the potential significance of that information to the applicant’s claims described in these submissions, which is further evidence that the Authority misunderstood those claims.
  9. In those circumstances, and having regard to substance over form, the applicant submits that it must be concluded that the Authority failed to consider and respond to the applicant’s particular claims.
  10. Thirdly, the applicant contends that it is well-established that an administrative tribunal conducting a “review” under Part 5 or Part 7 of the Migration Act “would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to the applicant’s case”,[21] or “failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case”.[22]
  11. Such failures are said to go beyond a mere failure to observe the requirements of natural justice and involve a constructive failure to exercise jurisdiction.[23] For that reason, the same failures by the Authority are said to involve a constructive failure to perform its duty to “review” and to exercise jurisdiction under Part 7AA of the Migration Act (s 473CC(1)).[24] “What the Authority cannot do is to fail or refuse to turn its attention to any of the review material”.[25]

Minister’s contentions

  1. As noted above, on 24 May 2013, the applicant participated in an entry interview.[26]
  2. It is not in issue that a written record of the whole entry interview but only a partial audio recording of the entry interview exists. It appears likely to be the case that the recording was inadvertently not resumed after the lunch break.[27]
  3. The relevant parts of the written record of the entry interview are as follows:[28]
    1. Why did you leave your country of nationality (country of residence)?
PAKISTAN
In Pakistan people dont have a good behavior towards Christians for example if I go to work and a person comes to know I am Christian they will fire me.
Go on.
Thats it.
Are there any other reasons you left Pakistan?
No thats my main reason.
  1. What do you think will happen to you if you return to your country of nationality (residence)?[29]
...
PAKISTAN
Because of my religion I will not be able to work so everyone will die from hunger.
  1. The applicant’s statement of claims in support of his SHEV application commences at CB 65. Relevantly, it stated:
I decided to learn tailoring from my cousin, [R] who had his own tailoring shop in the village. However, I was unable to find work and still suffered persecution because of my religion so my parents told me to join my older brothers who had gone to Saudi Arabia looking for work. ...
90. What do you think will happen to you if you return to that country?
I had enough of being not accepted and verbally persecuted and told that if did not become a Muslim I would be killed so I fled from Pakistan to Saudi Arabia. If I return to Pakistan I fear that I will be persecuted and killed because of my Christianity. I have been out of Pakistan for 20 years. If I return I would be arrested and tortured and killed. ...
91. Did you experience harm in that country?
Yes I was constantly humiliated because of my faith. Nearly every day I received verbal abuse and physical attacks. ...
  1. According to the delegate’s decision at CB 96 (error in original):
The applicant claims that he stayed on the family farm until he was 12 years old and then trained to become a tailor at his cousins business. He claims that he was unable to find work and was threatened with death for being a Christian. He claims he then travelled to Saudi Arabia to join his older brothers. He claims that he found work in Saudi Arabia and worked there as a tailor from 1994 until 2013.
...
No job opportunities in Pakistan
During the PV interview the applicant claimed that there were no job opportunities for him in Pakistan.
  1. The delegate found however that the applicant stated in his visa application and during the delegate’s interview that the applicant “is a trained tailor and has worked as a tailor since 1990”. The delegate also referred to the applicant’s Australian work experience and found that the applicant “has sufficient transferable skills and has demonstrated his ability to diversify in order to gain employment”. The delegate did not accept that there were no employment opportunities in Pakistan for the applicant.[30]
  2. At [18],[31] the Authority identified, among other things, that the applicant’s claims included that he had difficulty finding work in his village in Pakistan due to his religion. The Authority acknowledged the entry interview “hypothetical situation” at [25].[32] At [29],[33] the Authority stated:
As discussed, the applicant did not refer to any difficulties securing employment when asked whether anything had happened to him in Pakistan because he was a Christian, or when he was asked to describe any past experience of persecution related to his Christianity in Pakistan during the SHEV interview.
  1. The applicant could have, but has not, adduced any evidence in these proceedings to contradict the above statement.[34] There is no transcript of the SHEV interview, which was audio recorded, in evidence.
  2. The Authority continued, also at [29] (Minister’s emphasis retained):[35]
I note that the applicant's evidence is that he worked on the family farm or farming for himself from approximately 1971 to 1990, and for his cousin as a tailor from approximately 1990 to 1994, before travelling to Saudi Arabia where he worked as a tailor from 1995 until his departure from that country in 2013 to travel to Australia. The applicant's description of his work history does not suggest that he experienced periods of unemployment for any reason. This, together with the omission of any reference to difficulty securing employment in Pakistan because of his Christian faith from his evidence during the SHEV interview, leads me to question the applicant's claims that he had difficulty finding work in Pakistan due to his Christian faith. As discussed, during the entry interview, the applicant appeared to refer to a hypothetical situation in which, were he employed and his Christianity discovered in the course of that employment, he would be fired. Given that this appears to have been presented as an example of the type of mistreatment experienced by Christians generally, rather than an example of his own experience of mistreatment related to his religion, and as the applicant's other evidence does not include any reference to losing a job because of his religion, I am satisfied that the applicant was not fired from any employment because of his Christian faith.
  1. The Authority found the applicant’s claims concerning mistreatment related to his Christian faith were exaggerated. It did not accept that the applicant had experienced “any difficulty finding employment for any reason related to his Christian faith”.[36] After considering country information including that submitted by the applicant, the Authority held at [40]:[37]
I accept that on his return to his home village in the [named] District, the applicant may experience occasional general verbal abuse related to his Christian faith. Although objectionable, I am not satisfied that any such treatment would amount to serious harm. There is no credible evidence before me to suggest that the applicant will experience any other harm related to his Christian faith in his home village in future.
(Minister’s emphasis retained)
  1. Further, at [46][38]:
Having carefully considered the applicant's individual circumstances and profile, and the range of evidence before me, I am not satisfied that there is a real chance of any other harm to him in his home village, now or in the foreseeable future.
(Minister’s emphasis retained)
  1. It is well-settled that where a decision-maker, including the Authority, fails to make a finding upon a substantial, clearly articulated argument relying upon established facts, such failure can amount to a constructive failure to exercise jurisdiction by way of the decision-maker’s failure to consider an integer of the applicant’s claims.[39] As was stated by the Full Federal Court in Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal[40] per Dowsett, Besanko, Middleton, Foster and Griffiths JJ, in considering the reasons of an administrative decision-maker (such as the Authority in this case), it is important to have regard to two general matters:
First, the Tribunal is an administrative body and it is well settled that the reasons of such a body “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; [1993] FCA 456; 115 ALR 1 at 9; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; 136 ALR 481 at 490. Secondly, in circumstances where an allegation is made that a Tribunal has failed to consider an issue, it is necessary to bear in mind the observations of the Full Court of this Court in Applicant WAEE v Minister for Immigration and Indigenous Affairs (2003) 236 FCR 593; 75 ALD 630; [2003] FCAFC 184 at [47]:
47. 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.
  1. The Minister submits that the Authority expressly identified the claim including at [18.4].[41] It found the applicant had suffered no past denial of employment for reason of religion. It made findings at [40][42] and [46][43] (set out above) to the effect that the applicant faced no real chance of harm of any kind. These were plainly findings of sufficient generality to subsume any real chance or real risk of serious economic hardship including that amounting to significant harm.[44]
  2. The applicant’s submissions are said to selectively quote from the Authority’s decision at [29].[45] The words the applicant has omitted from the end of the first sentence of [29] are “during the SHEV interview”. The Minister submits that it is apparent that at [29] the Authority was referring to the omission by the applicant to refer to difficulties securing employment at the SHEV interview. The matters the applicant has set out are taken from the entry interview, which is not the same as the SHEV interview and was conducted before the SHEV application was lodged.
  3. The Minister submits that, contrary to the applicant’s submissions, the characterisation of the applicant’s example as a hypothetical[46] was plainly open. On the face of the entry interview, it was a hypothetical “for example”, and “they will”.[47] In any event, the Minister submits that the relevant integer of the applicant’s claims was considered. The Authority also did not suggest that the entirety of the claim was hypothetical.[48]
  4. The Minister contends that the applicant cannot demonstrate a failure to consider a claim by reference to his new country information; the Authority found this was “new information” and that s 473DD was not met.[49] The applicant does not allege any error in the Authority’s application of s 473DD of the Migration Act and there was no such error. The new country information was therefore not information before the Authority (indeed, it was prohibited by s 473DD from considering it) capable of giving rise to any claim or otherwise of any relevance to this ground of review.[50]
  5. The Minister further submits that the second premise in the applicant’s written submissions is not demonstrated. The third premise is said to be largely irrelevant where the ground of review does not allege a failure to consider evidence.

Resolution

  1. As I pointed out to counsel during oral argument, in relation to the first ground, there is a risk of conflating the applicant’s claims concerning his experiences in Saudi Arabia with his experiences in Pakistan. Pakistan was his country of reference and there was no reason for the Authority to consider his allegations in relation to Saudi Arabia in assessing the future risk of harm in Pakistan. The history given by the applicant was that he had been continuously employed in Pakistan from childhood on the family farm, until he commenced work as an apprentice tailor with his cousin. It was true that the applicant asserted difficulties in obtaining work in Pakistan but his history indicates that he was able to use family connections in order to obtain employment. In other word, he was able to subsist and he did not suffer severe economic hardship. The circumstances were dealt with in particular by the Authority at [29] of its reasons where the Authority stated:[51]
As discussed, the applicant did not refer to any difficulties securing employment when asked whether anything had happened to him in Pakistan because he was a Christian, or when he was asked to describe any past experience of persecution related to his Christianity in Pakistan during the SHEV interview. I note that the applicant's evidence is that he worked on the family farm or farming for himself from approximately 1971 to 1990, and for his cousin as a tailor from approximately 1990 to 1994, before travelling to Saudi Arabia where he worked as a tailor from 1995 until his departure from that country in 2013 to travel to Australia. The applicant's description of his work history does not suggest that he experienced periods of unemployment for any reason. This, together with the omission of any reference to difficulty securing employment in Pakistan because of his Christian faith from his evidence during the SHEV interview, leads me to question the applicant's claims that he had difficulty finding work in Pakistan due to his Christian faith. As discussed, during the entry interview, the applicant appeared to refer to a hypothetical situation in which, were he employed and his Christianity discovered in the course of that employment, he would be fired. Given that this appears to have been presented as an example of the type of mistreatment experienced by Christians generally, rather than an example of his own experience of mistreatment related to his religion, and as the applicant's other evidence does not include any reference to losing a job because of his religion, I am satisfied that the applicant was not fired from any employment because of his Christian faith.
  1. The Authority there referred to what the applicant had said (or not said) during his SHEV interview. It is apparent from the detailed discussion of that interview at [27] of the Authority’s reasons that the Authority had listened to the sound recording of that interview. The applicant has not put into evidence a transcript of the SHEV interview and hence the applicant is not in a position to dispute the Authority’s account of what was discussed at that interview. Based upon the material in the court book, the Authority’s description of the applicant’s work experience in Pakistan is factually accurate, apart from the reference to 1971. The applicant was continuously employed in Pakistan and he did not lose a job in Pakistan because of his religion.
  2. I reject the applicant’s contention that the Authority erroneously treated the applicant’s assertion at the entry interview that if he was employed in Pakistan he would be fired once his Christianity was discovered. In my view, the applicant was seeking to draw from his experience in Saudi Arabia to support a fear of similar treatment in Pakistan in the future. That is, I infer, also how the Authority treated that proposition.
  3. I find that there was no constructive failure of jurisdiction in the Authority’s consideration of the applicant’s claim of inability to subsist.

Ground 2 – did the Authority act unreasonably in failing to consider getting further information under s 473DC of the Migration Act or in making findings based on omissions in the entry interview in the absence of seeking that further information?

Applicant’s contentions

  1. The applicant contends that, insofar as the Authority made findings adverse to the applicant based on omissions from his entry interview in circumstances where the Authority knew that its record of that interview was incomplete, the Authority erred in law and its decision was unreasonable and the Authority unreasonably failed to consider exercising power under s 473DC.
  2. The circumstances surrounding the loss of the entry interview recording may be summarised as follows:
(a) the applicant’s entry interview started at 11:50am and concluded at 3:09pm, with a meal break between 1:05pm and 1:41pm;[52]
(b) the interviewer told the applicant that "[t]his interview will be recorded",[53] and conducted the interview on that basis, with the result that it cannot be assumed that the written record was intended to be exact or exhaustive; and
(c) for reasons unknown, the audio recording of the applicant’s entry interview provided to the Authority ends at the commencement of the meal break, and omits the second half of the interview (approximately 1 hour 28 minutes).
  1. Because the only complete record of the “material provided by the referred applicant” (within the meaning of s 473CB(1)(b)) during the second half of that interview was the lost audio recording, a significant part of the “review material” that was required to be given to the Authority was not given to it.
  2. The High Court adverted to a similar problem in ABT17 v Minister for Immigration and Border Protection,[54] referring to the “informational gap” that may arise where an audio recording of the delegate’s interview is given to the Authority but a video recording is not given to the Authority. The “informational gap” was described in the following terms:
Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview − his or her demeanour.
  1. In such a case, “the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given”.[55]
  2. In this case, not only was there no video recording given to the Authority, but a substantial part of the audio recording was not given to the Authority. The “informational gap” extended beyond the “visual impression of how the referred applicant appeared during the interview” and encompassed all of the claims and submissions made by the applicant during the second half of the entry interview.
  3. The Authority knew that it did not have the whole recording of the applicant's entry interview and that, accordingly, its record of the evidence given by the applicant during his entry interview was incomplete. The Authority’s knowledge is to be inferred from its letter to the Minister’s Department dated 31 May 2017, in which the Authority stated:
The arrival interview recording was paused for lunch break at 1 hour 14mins; we do not seem to have received the concluding part of the arrival interview recording in the referred documents. Please provide a copy of the arrival interview recording to the IAA.
The Minister’s Department replied that “there is no other recording available for the client”.[56]
  1. The Authority made the following adverse findings to the applicant:[57]
(a) “[t]he limited and unspecific nature of the applicant's evidence in relation to his claimed mistreatment due to his religion in his village in his SHEV and entry interviews leads me to question his claims in his SHEV application to have experienced almost daily verbal abuse and physical attacks in his village”; and
(b) “I find it difficult to accept that if he had in fact experienced these events, that he would not have mentioned them when asked about his reasons for leaving Pakistan during the entry interview”.
  1. The Authority knew that the delegate had interviewed the applicant and had not made those adverse findings. The Authority did not interview the applicant. The applicant submits that it was unreasonable for the Authority to make adverse findings in those terms in relation to omissions from his entry interview in circumstances where the Authority knew that its record of that interview was incomplete and the delegate had not expressed the same concern. This is said to be so, especially in circumstances where the applicant had no other opportunity to address the potential consequences of the lost audio recording before the Authority.
  2. The applicant submits that it was also unreasonable for the Authority to fail to consider exercising power under s 473DC to get information from or to invite a person to give information in those circumstances. The Authority could have exercised power to get or invite information about what was said, from the applicant or from the departmental officer who interviewed him,[58] or both.

Minister’s contentions

  1. The discretionary powers conferred on the Authority by Division 3 of Part 7AA of the Migration Act (including s 473DC(3)) are conferred on the implied condition that they are to be exercised within the bounds of legal reasonableness.[59] In DPI17 v Minister for Home Affairs[60] Griffiths and Steward JJ summarised propositions established by the plurality’s judgment in Plaintiff M174 in relation to Part 7AA of the Migration Act.
  2. The Minister submits that the applicant has not discharged his onus of proving that the Authority did not consider exercising its discretion pursuant to s 473DC(3).[61]
  3. Further, and even if it did not, the Minister submits that the Authority has provided no reasons[62] for its exercise of discretion. Thus, the Court is engaged in an “outcome focused” analysis of alleged legal unreasonableness.[63] In an outcome focused challenge it is crucial to recognise that it is erroneous in judicial review for the Court to assess what it regards as being a reasonable outcome and thereby conclude that any other view (ie, that of the decision-maker) necessarily involves error.[64]
  4. As the High Court has observed, the test of legal unreasonableness is necessarily stringent.[65] It is accepted there may be circumstances in which it would be legally unreasonable for the Authority to fail to exercise the discretion in s 473DC(3).[66] The Minister contends that the present is not one of them. It cannot be said that the only course legally available to the Authority in the circumstances[67] was to exercise its discretion to get new information from the applicant or the officer who conducted the entry interview.

Statutory framework

  1. The Minister submits that, whether it was legally unreasonable for the Authority not to have exercised its power in s 473DC to invite the applicant to tell it what, if any, additional things he said at the entry interview or to invite the officer who conducted the interview to do so (assuming, extraordinarily, that he had some independent recollection) must be assessed against the relevant statutory framework.[68]
  2. Pursuant to s 473DA, Division 3 of Part 7AA with ss 473GA and 473GB “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule”. Section 473DB “sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant”.[69] Subdivision C of Division 3 provides for limited exceptions to the general rule that the Authority is not to accept or request new information.[70] Section 473DD imposes restrictions on when the Authority can consider new information. New information can only be considered where there are exceptional circumstances to justify doing so.[71]

This case is not analogous to any authority in which legal unreasonableness has been found

  1. Accepting that there are no fixed categories of circumstances in which legal unreasonableness is demonstrated, the Minister submits that this is nevertheless not a case in which there was a new dispositive issue before the Authority in relation to which it needed, but did not have, information from the applicant.[72] To the contrary, the Authority made factual findings on the basis of the same body of information that was before the delegate.[73]
  2. The Authority also did not reject the applicant’s account wholly or substantially on the basis of its own assessment of the manner in which the account was given contrary to an acceptance of that account by the delegate[74] and/or in circumstances where the delegate made favourable findings on the basis of, among other things, demeanour, and told the applicant at interview that aspects of his account were accepted.[75]

Applicant’s written submissions

  1. The Minister contends that it is wrong to say that a significant part of the review material that should have been provided to the Authority by the Secretary, was not given to it. Part of the entry interview was either not recorded at all or a recording of that part was not available to the Secretary. That is to say, there was no audio recording of that part of the entry interview “in the Secretary's possession or control” at the time of referral (s 473CB(1)(c)) that the Secretary was capable of giving, or obliged to give, to the Authority as part of the review material.
  2. The Minister submits that the applicant selectively quotes s 473CB(1)(b); it says “material provided by the referred applicant to the person making the decision before the decision was made”.[76] The applicant’s oral answers at entry interview were not provided to the person making the fast track reviewable decision (s 473BB), ie the delegate.
  3. The Minister submits that ABT17 is plainly distinguishable. There was no informational gap as between the delegate and Authority, nor any departure by the Authority from favourable findings made by the delegate on the basis of the applicant’s demeanour when giving oral evidence. Both the delegate and the Authority had a written record of the entry interview, and a partial audio recording of it.
  4. The Minister further submits that although it is the case that the Authority “knew” it did not have a complete audio recording of the entry interview, this does not mean and cannot support an inference that the Authority proceeded on the basis that it did not have a complete account of the evidence the applicant gave at the entry interview. The Authority had a written record of that interview. Just because the Authority knew it did not have an audio recording of the whole entry interview, this does not establish that the Authority considered or proceeded on the basis that there were relevant and material omissions from the written record of the entry interview.[77]
  5. The Minister submits that, critically, there is also no evidence that those parts of the written entry interview record that contain the applicant’s claims to fear harm are not an accurate and complete record of what the applicant said at the interview. There is no evidence from either the applicant or the interview officer that they would have had anything at all to add to the written record by way of correction or addition, or as to what those corrections or additions might have been. To the contrary, the written record suggests it is exhaustive.[78]
  6. As the Full Federal Court held in EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[79] in the context of an alleged s 473CB(1)(c) breach based on the absence of an audio recording, “the existence of a gap (or the absence of a recording entirely) is not, of itself, enough. ... A visa applicant must establish how that gap affected the Authority’s conduct of its review”. See also BEL18 v Minister for Home Affairs,[80] a case concerning alleged legal unreasonableness in relation to s 473DC(3) where the delegate’s interview audio recording was incomplete, at [78] (“[t]he mere fact of there being a gap in the audio recording does not mean the Authority did not undertake its statutory task”) and [80] (“the [a]ppellant does not identify what information was omitted from the audio recording and the significance of that information”).
  7. The Minister further submits that, even if there was some incompleteness demonstrated in the written entry interview record (which there is not) in the absence of evidence as to what was omitted from the written record, the applicant cannot discharge his onus of proving materiality.[81]
  8. The Minister contends that differences in the process of reasoning as between the delegate and Authority, by reference to the same body of material before both decision-makers, do not without more give rise to legal unreasonableness.[82]

Resolution

  1. The written record of the entry interview is set out at CB 12-30. With the exception of question 19, there is no suggestion that anything has been omitted from the written record. I accept that the audio recording of the interview is incomplete. That fact would have raised obstacles if the Authority had wanted to draw adverse conclusions from asserted inconsistencies between the entry interview and the SHEV interview, or if the Authority had attempted to draw conclusions based on the applicant’s demeanour at the entry interview.
  2. In the present case, the Authority saw some consistency as between the entry interview and the SHEV interview as explained at [28] of its reasons.[83] In my opinion, the conclusions reached by the Authority, having regard to the evidence as a whole (including the entry interview) at [30], [34], [36], [40] and in its ultimate conclusions, were open to the Authority on the material before it.
  3. Further, it was open to the Authority to complete the review without getting further information from the applicant in relation to what had occurred at the entry interview. The applicant had proffered new information to the Authority but that had not been accepted in accordance with s 473DD of the Migration Act. The Authority’s reasoning in that regard is not under challenge.
  4. I find that the second ground has not been established.

CONCLUSION

  1. I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
  2. I will hear the parties as to costs.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.



Associate:

Dated: 11 May 2021

[1] Court Book (CB) 31
[2] CB 65
[3] CB 95-96
[4] CB 99
[5] CB 96
[6] CB 98
[7] CB 16
[8] CB 24
[9] CB 24
[10] CB 24
[11] CB 29
[12] CB 65
[13] CB 139 [18]
[14] CB 140 [18]
[15] CB 142 [29]
[16] CB 142 [29]
[17] CB 142 [29]
[18] CB 142 [29]
[19] CB 104
[20] CB 137 [7]-[8]
[21] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13] (Bell, Gageler and Keane JJ), citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]- [112] (Robertson J). See also Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [47]- [54] (Katzmann, Griffiths and Wigney JJ)
[22] SZMTA at [13] (Bell, Gageler and Keane JJ) and [105] (Nettle and Gordon JJ), citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24]-[25] (Gummow and Callinan JJ with whom Hayne J agreed at [95])
[23] Dranichnikov at [25] (Gummow and Callinan JJ with whom Hayne J agreed at [95]), applied in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at [90] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ)
[24] see, for example, DVD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 332 at [54] (Perry J); Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [79] (Kenny, Tracey and Griffiths JJ)
[25] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140 at [7] (Kiefel CJ and Gageler J).
[26] CB 12
[27] see the affidavit of Farid Varess made on 13 December 2019, at [2] and page 3
[28] CB 24
[29] CB 29
[30] CB 96
[31] CB 139
[32] CB 141
[33] CB 142
[34] NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 616 [67]
[35] CB 142
[36] CB 143 [30]
[37] CB 145
[38] CB 146
[39] NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 17-20 [55]- [63]; Dranichnikov at 1092 [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]
[40] [2017] FCAFC 124; (2017) 253 FCR 115 at 151 [163]
[41] CB 139
[42] CB 145
[43] 146
[44] see Applicant WAEE v Minister for Immigration and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604-605 [46]- [47]
[45] CB 142
[46] CB 24
[47] cf also particular (h) to this ground of review
[48] cf final sentence of [20] of the applicant’s submissions
[49] and see CB 104-105 footnote 4, which corresponds with the bottom of CB 118; CB 137-138 at [7]-[8]
[50] cf particular (d) to this ground of review
[51] CB 142
[52] CB 12
[53] CB 12
[54] [2020] HCA 34; (2020) 94 ALJR 928 at [13]- [25]
[55] at [25]
[56] See the affidavit of Mr Varess, Annexures A and B, pages 3-4
[57] CB 142 [28]
[58] CB 12
[59] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at 227 [21]
[60] [2019] FCAFC 43; (2019) 269 FCR 134 at 147 [35]
[61] BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091 at 1100 [38]- [40]; CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38]- [39]
[62] nor was it obliged to: cf s 473EA
[63] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445 [44]; Avon Downs Pty Ltd v Federal Commission for Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360
[64] Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at 6 [12]
[65] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 551 [11] (Kiefel CJ); and see 564-567 [51]-[60] (Gageler J), 572-575 [78]-[87] (Nettle and Gordon JJ), 583-586 [131]-[135] (Edelman J); Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at 61 [27]
[66] Plaintiff M174/2016 at 227 [21], 235-236 [49], 242 [71] (Gageler, Keane and Nettle JJ), 245[86] (Gordon J), 249 [97] (Edelman J); DPI17 at 147 [36], 160 [91]

[67] see BJO18 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 at [173]

[68] eg, BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71]; Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at 4-5 [7], 6-7 [16], 19-20 [62]; SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 567 [59] (Gageler J), and 575-577 [90]-[98] (Nettle and Gordon JJ)
[69] Plaintiff M174 /2016 at 227 [22] (Gageler, Keane and Nettle JJ)
[70] sections 473DC, 473DD and 473DE
[71] section 473DD(a)
[72] cf Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at 494 [82]; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 at 552 [94]
[73] DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at 569 [72]
[74] cf ABT17 at 937 [25]
[75] cf DPI17 at 141 [14], 150 [46]
[76] Minister’s emphasis retained
[77] See, similarly, DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160 at [62]
[78] CB 24, the applicant was asked twice whether he had any other reasons for leaving, relevantly, Pakistan, and said that he did not
[79] [2020] FCAFC 174 at [51]
[80] [2018] FCA 2103
[81] SZMTA at 433 [4]
[82] DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at 569 [72]; FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 at [39], [43]; ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44 at [44]
[83] CB 142

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