ADC18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 464
•29 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ADC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 464
File number(s): MLG 62 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 29 May 2024 Catchwords: MIGRATION – decision of the Immigration Assessment Authority – where applicant claimed harm at the hands of a Sri Lankan paramilitary group – where applicant contends that the Authority failed to consider the particular detail of his claim which had consequences for his risk-profile – where Authority made explicit reference to claim and evidence directed at it – where Authority finding comprehended the detail of the claim – whether Authority recorded finding about the activity of paramilitary group without evidentiary foundation or rational basis – where Authority incorrectly cited country information – whether error jurisdictional – application dismissed Legislation: Evidence Act 1995 (Cth), s 55
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Migration Act 1958 (Cth) ss 36, 473DD
Cases cited: ADN17 v Minister for Home Affairs [2019] FCA 1037
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595; [2019] FCAFC 132
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Australian Retailers Association and Others v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32
MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
Sharma v Minister for Immigration & Anor [2018] FCCA 2152
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submission: 24 May 2024 Date of hearing: 19 February 2024 Place: Melbourne Counsel for the Applicant: Ms L Bull Solicitor for the Applicant: Victoria Legal Aid Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 62 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADC18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
29 MAY 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for judicial review filed on 11 January 2018 and amended on 22 January 2024 be dismissed.
3.The applicant pay the first respondent’s costs in an amount to be agreed or in default of agreement in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
In this matter, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) dated 4 January 2018. The Authority affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection (Subclass 785) visa (visa).
BACKGROUND
The applicant is a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 21 October 2012.[1]
[1] Court Book (CB) 119.
On 19 October 2016, the applicant made a valid application for the visa.[2]
[2] CB 24-70.
The applicant’s claims were set out in a statutory declaration accompanying the application as follows:[3]
[3] CB 66-70.
·The applicant is a citizen of Sri Lanka and grew up in the Batticaloa district. He is of Tamil ethnicity.
·His father was a volunteer for the Tamil National Alliance (TNA). His duties largely consisted of distributing propaganda materials.
·The applicant volunteered for the TNA in support of a Member of Parliament, Ariyendran. His primary duties included distributing leaflets, door knocking and campaigning.
·In 2012, a paramilitary group called the “Karuna group” began forging bogus votes in an effort to obtain the political seat held by Ariyendran. The Karuna group was supported by the government and thus had the support of the police force, military, Criminal Investigation Department (CID) and others. Around the time of the 2012 election, there were consistent altercations between the TNA and the Karuna group. The applicant knew about the Karuna group’s efforts to rig the election and tried to prevent it from happening. On 8 September 2012 (the day of the election) there was another verbal altercation between the Karuna group and the TNA. The applicant claimed that the TNA could not physically fight the Karuna group as they (the Karuna group) were filming everything on their mobile phones. Ariyendran won the election at this time.
·Following the election, members of the Karuna group came looking for the applicant due to his prominence during the election. The Karuna group made false allegations to the CID that the applicant had committed a crime, and subsequently, the CID also began looking for the applicant.
·On 9 September 2012 around 2 or 3 am, the Karuna group attended the applicant’s house and demanded to know where the applicant was. The applicant escaped out of the back door while his wife answered the front door. This happened again around one week later.
·Following the second attendance by the Karuna group, the applicant left his home and went into hiding, staying with various friends. The Karuna group would regularly call and harass the applicant’s wife over the phone. The harassment of the applicant’s wife has continued since the applicant’s departure from Sri Lanka.
·On 3 October 2012, the applicant’s brother organised for the applicant to depart Sri Lanka for Australia by boat. The applicant left without a Sri Lankan passport.
·In December 2015, the Karuna group mistook another man to be the applicant, and later went to the applicant’s wife’s house and harassed her.
On 2 March 2017, the applicant was invited by a delegate of the Minister to attend a TPV interview.[4] The applicant attended the TPV interview on 22 March 2017.
[4] CB 113-115.
On 29 March 2017, a delegate of the Minister made a decision not to grant the applicant the visa.[5] The delegate found that the applicant was not a high-profile member of the TNA and was not targeted as such. The delegate did not accept that the applicant remained of interest to the Karuna group at the time of his interview.
[5] CB 116-128.
REFERRAL TO AND DECISION OF THE AUTHORITY
On 3 April 2017, the decision of the delegate was referred to the Authority for review under Part 7AA of the Migration Act 1958 (Cth) (Act).[6]
[6] CB 133-135.
On 28 April 2017, by email, the applicant provided the Authority with a letter from a Member of Parliament in Sri Lanka dated 26 April 2017 in which the author relayed information to the effect that the applicant’s wife was in receipt of constant threats from an unknown armed group.[7]
[7] CB 152-153.
On 4 January 2018, the Authority affirmed the decision of the delegate and provided a written statement of Decision and Reasons (Reasons).[8]
[8] CB 154-167.
The Authority acknowledged the receipt of additional material from the applicant and characterised the letter from the Member of Parliament as “new information”. The Authority was not satisfied that the letter engaged s 473DD of the Act and did not have regard to it in deciding the review.[9]
[9] Reasons, [4]-[7].
In summarising the applicant’s claims, the Authority recorded, amongst other things, that (Reasons, [8]):
•Around the 2012 elections the Karuna group became involved in illegal activities. The group attempted to cast forged and illegal votes in support of the government at that time and to capture the seat held by Ariyendran. The TNA tried to prevent this from happening.
•…
•The election took place on 8 September 2012. There was a verbal altercation between the two parties. They were filming everything on their mobile phones so the TNA could not physically fight them.
•After Ariyendran of the TNA won the election members of the Karuna group and some of their supporters from the army came in search of the applicant. The applicant was well known because he was involved in the campaigning for a long time and was prominent during the election. Prasanthan’s brother led the group that came after the applicant. They informed the CID about the applicant and made a false allegation that he had done something wrong. The CID believed them and was also looking for the applicant. They tried to implicate the applicant in illegal activity as they could not stomach their election defeat.
•…
•The authorities cannot protect the applicant as they operate as a gang with the Karuna group. They will arrest or shoot the applicant if he returns. He cannot live freely in any part of Sri Lanka. He will be dobbed in to the authorities and then he can be traced by those people wanting to harm him. He was quite prominent during the election and so the authorities have his photograph and name.
The Authority noted (at Reasons, [14]) that in the articulation of his claims, the applicant had stated that his problems started when the Karuna group people tried to forge votes. He and others had argued with them, saying people have the right to choose who they vote for, and you can’t force people to vote in a particular way by using the power of the government. This big argument had occurred on Election Day and the Karuna group people videoed the argument.
The Authority accepted, based on country information and the consistency of the applicant’s claims, that the applicant had worked in a volunteer capacity to support the TNA candidate in the September 2012 elections, and this work had caused him to be harassed and threatened by members of the Karuna group. The Authority also accepted that members of the Karuna group had made threatening phone calls to the applicant and had attended his home on two occasions within a week or so of the election occurring, insulting the applicant’s wife, and threatening to harm the applicant (Reasons, [19]).
However, the Authority found it implausible that men associated with the Karuna group would have continued to search for the applicant over a period of five years, particularly given there had been a change in government at the national level during this time and because the applicant did not claim to have been a member of the TNA, or a TNA candidate, or a close associate of the TNA candidate, or a paid employee of the TNA (Reasons, [21]).
The Authority noted that the applicant’s evidence at interview was that his role involved “delivering pamphlets, transporting goods and delivering things – just helping out” and that he did this two or three times a week for a few hours because he thought it might result in him obtaining employment. The Authority, based on this account, accepted that the applicant was a known TNA supporter and supported the TNA for several years but did not accept that he had a significant role or was instrumental in securing electoral victory for the TNA candidate in the 2012 provincial election. The Authority found it implausible in these circumstances that people would want to harm the applicant five years later (Reasons, [21]).
The Authority’s conclusion was fortified by country information and in particular, information which it identified as being taken from a DFAT, Country Information Report – Sri Lanka, 24 January 2017 (2017 DFAT Report). At Reasons, [22] the Authority said:
…country information regarding the Karuna group indicates that they no longer operate as a paramilitary group. Its leaders, Karuna and Pilliyan, have reportedly renounced paramilitary activities and both Karuna and Pilliyan, are under investigation for crimes committed during the regime of the previous Rajapaksa government which was in power in 2012. The associated political party, Tamil Makkal Viduthalai Pulikal (TMVP), is a recognised political party. DFAT assesses that the number of incidents of extra-judicial killing, disappearances, and abductions for ransom and other actions of paramilitary groups has fallen considerably since the end of the conflict and the TMVP, the Karuna group and other paramilitaries have renounced their paramilitary activities. DFAT also states that it “is aware of credible reports that these groups continue to be active in Sri Lanka, including in criminal activity. However verifying these reports is difficult.
The Authority’s findings concerning the applicant’s claim to fear harm from the Karuna group (or associates) coalesced in the following two paragraphs (Reasons, [24]-[25]):
In summary, other than through insult and verbal abuse, the applicant’s wife has not been harmed by the Karuna group, other paramilitary groups, the CID or other Sri Lankan authorities. Five years have passed since the applicant departed Sri Lanka. In that time there has been significant change in Sri Lanka with the election of the new government in 2015 and its promises of reform and reconciliation. Paramilitary groups have been disbanded; leading figures in the Karuna group are under criminal investigation; and the incidence of extortion, ransom, kidnap, white van abductions and other activities conducted by the Karuna group and other paramilitaries in the past are greatly reduced.
After assessing all the evidence I am satisfied that the chance of the applicant being subjected to harm by the Karuna group or other paramilitaries now and in the foreseeable future in Sri Lanka because of his support for the TNA, or because of false allegations made against him, or for any other reason, is very remote. I find his fears of persecution in this regard are not well-founded.
The Authority was not otherwise satisfied that the applicant’s circumstances engaged ss 36(2)(a) or 36(2)(aa) of the Act (for reasons that are not challenged in this application) and affirmed the decision of the delegate.
APPLICATION FOR JUDICIAL REVIEW
On 11 January 2018, the applicant made an application to this Court for judicial review of the Authority’s decision. On 22 January 2024, this application was amended to include two grounds of review. On the same date the applicant filed written submissions in support of his application and on 1 February 2024 the Minster filed responsive written submissions. The application was heard on 19 February 2024 on which occasion the applicant was represented by Ms Bull of counsel and the Minister by Ms Liddy, solicitor advocate.
Ground One
Ground one reads:
1.The IAA failed to consider an essential component of the applicant’s claims.
Particulars
a. The applicant claims fear of harm from the Karuna group (a paramilitary organisation) and its supporters due to his observations of them committing illegal activities, his attempts to stop them committing those activities, and the consequent verbal altercations, threats, and use of his photos by the perpetrators. He was a member of the Tamil National Alliance (TNA) during this period.
b. The Authority assessed the applicant’s claims only on the basis of his general involvement and affiliation with the TNA. It failed to consider the reason for the armed threats against him – namely the applicant’s witnessing of and attempts to stop the illegal activity by Karuna members.
c. The failure of the Authority to consider this component of the applicant’s claim amounted to jurisdictional error.
The applicant’s submissions.
The applicant submits that in considering his claim to apprehend harm at the hands of the Karuna group, the Authority failed to consider that a significant part of his risk-profile was that he had made attempts to intervene in and prevent the Karuna group from engaging in the illegal activity of casting forged votes and it was these actions, as well as the fact that the applicant had been photographed and was therefore identifiable, that had prompted the Karuna group to target the applicant in the aftermath of the 2012 election.
The applicant acknowledged that the Authority had referred to his evidence on this topic given at interview (refer [11]) but submitted that this evidence, which formed part of the applicant’s case, was not considered in the final analysis by the Authority. The applicant submitted that support for this conclusion came from the Authority’s finding that the applicant was only a low-level supporter of the TNA. The applicant submitted that this finding was irreconcilable with the applicant’s evidence (and claim) that he had witnessed and attempted to thwart, the Karuna group’s illegal activity and had been photographed and filmed in this endeavour.
The applicant relies on the following observations made by (then) Mortimer J in ADN17 v Minister for Home Affairs [2019] FCA 1037 at [37]:
…The whole point of the obligation to consider and determine each claim which is made, or fairly arises on the material, is to ensure a person is not denied the opportunity to be given protection on the basis of matters which are said to be material to the circumstances of that individual should she or he be forced to return to her or his country of nationality. A “general consideration” of what a protection visa applicant says is insufficient, because the task of determining if an expressed fear is objectively well-founded is not undertaken at a level of generality, but at an appropriate level of particularity. As the Full Court said in Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; 236 FCR 593 at [46] (French, Sackville and Hely JJ):
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[89] and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.
(Applicant’s emphasis)
The applicant submits that his claim about the basis for the Karuna group’s threats of harm were material to the outcome of the Authority’s review such that failure to consider them involved jurisdictional error.
The Minister’s submissions
The Minister submits that given the Authority considered and made reference to the applicant’s statutory declaration accompanying the application for the visa, no inference should be drawn that it failed to consider the applicant’s claim that he had witnessed and attempted to stop the Karuna group committing election crimes, which claim was referred to in that document.
The Minister submits that the applicant’s claim to have tried to prevent the Karuna group from committing crimes should be understood as part of his wider claim to fear harm based on his involvement with the TNA and the 2012 election, from which this specific incident arose. The Minister submits that in any case, the Authority expressly considered this aspect of the applicant’s claim when it:
(a)summarised this aspect of the applicant’s claim, namely that the TNA sought to prevent the Karuna group’s illegal activities and the armed physical threat that ensued, Reasons [8];
(b)referred to the applicant’s claim that the applicant (and other members of the TNA) argued with the Karuna group on the day of the election when they were trying to forge votes, Reasons, [14]); and
(c)accepted that the applicant worked in a volunteer capacity for the TNA in the elections held in September 2012 and was subsequently threatened and his wife insulted (Reasons, [19]), however found that given that five years had passed, another election had taken place and the applicant’s low level political profile, it was implausible that “these men” would continue to search for him (Reasons, [20]-[21]).
Consideration of ground one
I am not persuaded that the Authority erred by failing to consider the applicant’s claim to apprehend harm because of his efforts to prevent the Karuna group from engaging in illegal (election-related) activity.
It is notable in this case that the Authority made explicit reference both to the claim in its iteration in the applicant’s statutory declaration and to the applicant’s evidence (directed at the claim) given at the TPV interview (refer Reasons, [8] and [14]). In these circumstances, it cannot be said that the Authority’s decision was made in ignorance of the matters now emphasised by the applicant.
I infer instead, including because of the proximity of these references to the Authority’s findings recorded at [19] about the extent of the reprisal action taken by the Karuna group, that the Authority did take account of the applicant’s evidence and claim about the TNA and his efforts to thwart illegal election activity. The Authority, in effect, accepted that the Karuna group was sufficiently motivated to take action against the applicant in the weeks following the 2012 election because of his support for the TNA candidate, which support comprehended the challenge to the illegal practices of the Karuna group.
The Authority did not record a finding that the applicant was a “low-level” supporter of the TNA (compare applicant’s submissions at [21]). Instead, the Authority accurately recounted the applicant’s evidence as to the nature and extent of the assistance he had provided to the TNA (and its candidate) and his motivation for doing so (Reasons, [21]). The finding by the Authority that it “did not accept [the applicant] had a significant role or was instrumental in securing electoral victory for the TNA candidate in the 2012 provincial election” (Reasons, [21]) was not irreconcilable with the applicant’s claim and evidence about his efforts (on a single day) to prevent fraudulent vote casting.
It is further the case (and this goes to materiality) that the Authority rejected the applicant’s claim to apprehend harm from the Karuna group (and associates) for reasons that reflected the passage of time and the diminished role of the Karuna group. Read as a whole, the Authority appreciated the significance of the applicant’s claim but consigned its significance, in a manner that was open to it, to the weeks immediately following the 2012 election.
Ground one is dismissed.
Ground two
Ground two reads:
2.The IAA made a finding which lacked an evidentiary foundation or rational basis
Particulars
a. As above, the applicant claims fear of harm from, inter alia, the paramilitary group Karuna.
b. The Authority found that paramilitary groups in Sri Lanka have disbanded, and this was a factor in the Authority determining that the chance of the applicant being subjected to harm by the Karuna group or other paramilitaries is “very remote” (at paragraph 25 of the Decision).
c. There was no evidence before the Authority which would allow it to reasonably conclude that paramilitary groups have disbanded. To the contrary, a DFAT report was cited which stated that DFAT was aware of credible reports that paramilitary groups continue to be active in Sri Lanka.
d. This finding by the Authority lacked an evidentiary foundation and/or a rational basis and amounts to jurisdictional error.
The applicant’s submissions
As noted earlier, part of the Authority’s dispositive reasoning was its view taken, upon an evaluation of country information, that in the years since the 2012 election, the activities conducted by the Karuna group and other paramilitaries had greatly reduced and that in some cases, paramilitary groups had been disbanded (Reasons, [24]).
The applicant submits that the country information ostensibly relied upon by the Authority did not support findings of this kind because there was no evidence in any of these materials that paramilitary groups had been disbanded.
The Authority identified and purported to summarise the country information at Reasons, [22] (reproduced at [16] above). The applicant submits in relation to this paragraph that:
(a)The specific passage referred to in the final sentence of paragraph 22 is not from the 2017 DFAT Report as noted, but from the 2015 DFAT Report instead. The 2017 DFAT Report does not mention paramilitaries or Karuna at all;
(b)The 2015 DFAT Report states that the security situation in Sri Lanka has “greatly improved” (at [2.33]), and that while some groups including the Tamil Makkal Viduthalai Pulikal (TMVP) have “reportedly renounced paramilitary activities, DFAT is aware of credible reports that these groups continue to be active in Sri Lanka, including in criminal activity. However, verifying these reports is difficult” (at [2.35]). The TMVP is, the Authority states, the political party associated with Karuna, but not a paramilitary force itself (Reasons, [22]);
(c)The news articles listed relate to specific individuals and their arrest for criminal activity, not a disbanding of an entire paramilitary organisation.
The applicant submits that it was legally irrational, against this background and country information, to conclude that paramilitary groups had been disbanded, especially given the acknowledgement by DFAT (albeit contained in the 2015 DFAT Report) of credible reports that “these groups” (which included Karuna) continue to be active in Sri Lanka. The applicant submits that this finding was not based on findings or inferences of fact supported by logical grounds (referring to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at 232 [38]) and given its materiality to the Authority’s reasoning process – if a paramilitary group no longer exists, it cannot be said to be a risk to the applicant and vice versa - the error was jurisdictional.
The Minister’s submissions
The Minister acknowledges that the Authority’s footnote references to the 2017 DFAT Report at paragraphs 22 to 23 of its Reasons should be understood as references instead to the 2015 DFAT Report. However, the Minister submits that the Court should adopt a commonsense approach to what he describes as a “typographical error” by the Authority and proceed on the basis that this mistake was “nothing more than an unintended oversight” (referring to Sharma v Minister for Immigration & Anor [2018] FCCA 2152 at [30]).
The Minister submits that information extracted by the Authority from the 2015 DFAT Report, a copy of which was annexed to an affidavit of Amron Rath dated 31 January 2024 read without objection by the Minister, provided an evidentiary basis for the findings recorded by the Authority. This was because, according to the Minister, the 2015 DFAT Report at [2.35] indicated that the Karuna group no longer acted as a paramilitary group, that militant groups had switched their allegiances to the government and paramilitaries had renounced their paramilitary activities. Further, while the 2015 DFAT Report referred to credible reports that these groups continued to be active, it was acknowledged that these reports could not be verified.
The Minister submits that it was not unreasonable for the Authority to distil from this country information that “paramilitary groups [had] been disbanded…and other activities conducted by the Karuna group and other paramilitaries in the past are greatly reduced” (Reasons, [24]). The Minister submits that there was more than a “skerrick” of evidence before the Authority to support this finding, either directly, or through a process of inferential reasoning (referring to MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]).
Further, the Minister submits that the Authority’s finding at Reasons, [25] that the likelihood of the applicant facing harm from the Karuna group or other paramilitary groups was very remote involved an assessment of “all the evidence”. This necessarily included the applicant’s level of involvement in the TNA and the time that had passed since the events of the 2012 election. The Minister submits that when the reasons of the Authority are read as a whole no error in the conclusions drawn is discernible.
Consideration of ground two
I am prepared to approach this ground (and the Reasons) on the basis that the Authority’s footnote references at Reasons, [22] and [23] to the 2017 DFAT Report were intended instead to refer to the 2015 DFAT Report. Having reviewed both the 2015 DFAT Report and the 2017 DFAT Report it is apparent that the information cited by the Authority in these two paragraphs was taken from the former document, rather than the latter, which does not contain any discussion of the activities of Tamil militant groups.
I accept that this information was principally derived from [2.35] of the 2015 DFAT Report which reads:
2.35Some Tamil militant groups, such as the Eelam People’s Democratic Party (EPDP) and the Tamil Makkal Viduthalai Pulikal (TMVP), switched their allegiance to the then Government during the conflict and played a key role in supporting it in the north and east. While these groups have reportedly renounced paramilitary activities, DFAT is aware of credible reports that these groups continue to be active in Sri Lanka including in criminal activity. However verifying these reports is difficult.
This paragraph provides the basis for much of what is recorded by the Authority at [22] of its Reasons, with one qualification. While the Authority records, ostensibly by reference to the 2017 (sic) DFAT Report that “the TVMP, the Karuna group and other paramilitaries renounced their paramilitary activities” (my emphasis), the 2015 DFAT Report (including at [2.35]) is silent on the activities of the Karuna group.
Following the hearing, the parties were requested to address in writing the question of what, if anything, the Court should make of this discrepancy.
The applicant submitted that the fact that the Karuna group was not mentioned by name or identified through clear inference in the passage apparently relied upon by the Authority further reinforced his argument that there was no rational or probative basis for the Authority’s finding that the Karuna group had renounced its paramilitary activities.
The applicant referred the Court to the following passage ([111]) of (then) Mortimer J in Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 where her Honour said:
Where it involves findings of fact which are critical or material to the way in which the statutory power is exercised, the Assistant Minister’s consideration and exercise of power must be grounded in probative material, and not in speculation or guesswork, or (worse) assumptions based on material incapable of supporting those assumptions.
The applicant submitted that the Authority’s finding relied on material that could not evidence the conclusion it drew, even taking the material at its highest. It was properly characterised as speculative and therefore legally irrational.
The Minister submitted that by reading the decision of the Authority as a whole, including the reference (also within Reasons [22]), to the Karuna group’s leaders having reportedly renounced paramilitary activities, there was more than a skerrick of information before it which supported the finding that the Karuna group had ceased its paramilitary activity.
The Minister noted (as did the applicant in his further submissions) that the decision of the delegate, which was before the Authority as part of the “review material”, contained (at CB 124) the following passage:
The TMVP’s founding leader, Vinayagamoorthy Muralitharan, known as Karuna, was originally the commander of LTTE in the Eastern Province, based in Batticaloa District. In 2004, Karuna broke away from LTTE, taking a number of his cadres with him, and formed a paramilitary group – often referred to as the Karuna Group. The Karuna Group formed an associated political party called TMVP which was officially registered in 2007. He subsequently left the TMVP and joined the Sri Lanka Freedom Party (SLFP).
However, where the applicant made the submission that the country information cited by the delegate as the source for this statement did not contain evidence of the TMVP being the associated political party of the Karuna group, the Minister submitted to the contrary.
The information – which appeared in a report identified by the delegate as International Crisis Group 2008, Sri Lanka’s Eastern Province: Land, Development, Conflict, Asia Report No 159, 15 October[10] – relevantly states:
The east grew even more tense in March 2004 when the LTTE’s eastern military commander, “Colonel Karuna”, split from the Tigers and formed the Tamil Makkal Viduthalai Puligal (TMVP). The next few years of guerrilla warfare between the northern Tigers and Karuna’s forces, with government support for the latter, contributed to the collapse of the ceasefire.
[10] International Crisis Group 2008, Sri Lanka’s Eastern Province: Land, Development, Conflict, Asia Report No.159, 15 October, < accessed on 24 May 2024.
The Minister submitted that it could be clearly inferred from this country information that the Karuna group was an associated party of the TMVP.
The parties were also requested to address a related question of what if anything should be made of the fact that the Authority, also in Reasons [22], had attributed the statement “[t]he associated political party, Tamil Makkal Viduthalai Pulikal (TMVP), is a recognised political party” to the 2017 DFAT Report when this statement (or one to this effect) did not appear in either the 2017 or the 2015 DFAT Report.
The applicant submitted that the inclusion of the statement and the incorrect attribution of it to the 2017 DFAT Report belied a set of reasons which had not had proper regard to the material before it. This created further apprehension about the integrity and rationality of the Reasons.
The Minister conceded that the Authority’s attribution of the statement about the TMVP being a recognised political party to the 2017 DFAT Report was in error but submitted that the error of fact was not jurisdictional given that the applicant did not claim to fear harm from the TMVP.
The applicant (in brief responsive submissions) submitted that the error had broader ramifications. It was said that the clear implication of including the finding about the status of the TMVP was to make the point that neither of the associated groups (the TMVP and the Karuna group) continued to engage in paramilitary activity because in the case of the former it had become legitimised and in the case of the latter, it had renounced such activities.
The parties were also invited to address the question of what, if anything, the Court should make of the Authority’s reference to the 2015 DFAT Report in circumstances where the more recent 2017 DFAT Report was available at the time of decision.
The applicant submitted that in circumstances where there was no mention of the Karuna group in either DFAT Report the Authority’s reliance on the 2015 DFAT Report was of significance only insofar as it provided further evidence that the Reasons were not properly supported by the material before the Authority.
The Minister submitted that although the 2017 DFAT Report was intended to replace the 2015 DFAT Report (refer paragraph [1.5] of the 2017 DFAT Report), the information in the earlier report was the most up to date information available to the Authority on the topic of paramilitary activities, as compared to the more general information contained in the 2017 DFAT Report. The Authority was entitled to take the 2015 DFAT Report into account.
Turning then to the evidentiary basis for the Authority’s decision. In Australian Retailers Association and Others v Reserve Bank of Australia (2005) 148 FCR 446 at [575] Weinberg J at [575] said:
Under s 39B of the Judiciary Act (which reflects the common law), the “no evidence” ground requires that there be simply no evidence, or other material, to justify the findings of fact made. Aronson, M, Dyer, B and Groves, M, Judicial Review of Administrative Action (3rd ed, Lawbook Co, 2004) suggests, at 239, that “no evidence” means “not a skerrick of evidence”. If there is some evidence, no matter how unconvincing, and no matter how overwhelming the evidence to the contrary may be, the traditional approach is to treat the complaint as factual, and not legal. According to Mason CJ in Bond (1990) 170 CLR 321, at 356:
So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ said at 355-356:
The question whether there is any evidence of a particular fact is a question of law: McPhee v.S. Bennett Ltd (1934) 52 WN(N.S.W.) 8, at p. 9; Australian Gas Light Co. v. Valuer-General (1940) 40 SR (NSW) 126, at pp. 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light at pp 137-138; Hope v. Bathurst City Council (1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. (1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden (1975) 132 CLR 473, at pp 481, 483.
But it is said that “[t]here is no error of law simply in making a wrong finding of fact”: Waterford v. The Commonwealth (1987) 163 CLR 54 at p. 77, per Brennan J. Similarly, Menzies J observed in Reg. v. The District Court; Ex parte White (1966) 116 CLR 644, at p. 654:
“Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.”
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
In determining whether a finding is supported by “some basis” or a “skerrick” of evidence, one should ask whether evidence existed which could rationally affect the assessment of the probability of the existence of a fact (c.f. s 55 of the Evidence Act 1995 (Cth)) or a future fact. If such evidence exists, it is for the decision maker, and not this Court, to determine its probative weight and to decide whether it does, or does not, support a given finding.
Taking a step back from the minutiae and applying an approach that considers the reasons for decision as a whole, the place of the impugned finding within those reasons, and the evidence that was before the Authority, I am ultimately not persuaded that the Authority erred in the manner alleged by the applicant.
In saying this, it is regrettable that the Authority’s reasons did not in all cases accurately reference the country information that it purported to rely on and that statements attributed to sources of country information did not in all cases faithfully record the source material. This lack of attention to detail has the capacity to undermine the integrity of the decision-making process and to cast doubt, understandably, in the mind of the review applicant as to whether his or her claims have been properly understood and considered.
However, I accept the submission of the Minister that there was sufficient evidence before the Authority – including evidence that it expressly referenced and evidence that formed part of the review material – to rationally support the dispositive findings recorded at Reasons [24]-[25] that “[p]aramilitary groups have been disbanded; leading figures in the Karuna group are under criminal investigation; and the incidence of extortion, ransom, kidnap, white van abductions and other activities conducted by the Karuna group and other paramilitaries in the past are greatly reduced”.
While I accept that neither party was able to identify amongst the review material an item of country information that said explicitly that the Karuna group had disbanded, I do not consider the absence of such information to have jurisdictional consequences in this case. This is because I consider that the country information that was before the Authority was capable of supporting an inference that the Karuna group was an associated party of the TMVP and a further inference that the cessation of hostilities by the TMVP encompassed a cessation of hostilities by the Karuna group. I further consider that any error in finding that the Karuna group had disbanded was not material given that the gravamen of the Authority’s dispositive finding was that the applicant’s risk of harm was remote because of the passage of time, the applicant’s low-level profile, the changed political environment and the reduction in the activities conducted by the Karuna group and other paramilitaries. I consider that the applicant has overstated the significance of the Authority’s statement at Reasons [22] concerning the disbandment of paramilitary activities, having regard to the Reasons as a whole and the place of this statement within the Authority’s dispositive reasoning.
For the avoidance of doubt, I do not consider that anything turns on the Authority’s reliance on the 2015 DFAT Report as a source of country information concerning the topic of paramilitary activities in Sri Lanka in circumstances where the later, 2017 DFAT Report, did not include such information.
Ground two is dismissed.
CONCLUSION
In circumstances where the applicant has been unsuccessful in his application for judicial review, it must follow that the application (as amended) be dismissed, with an order that the applicant pay the Minister’s costs in an amount to be agreed or in default of agreement in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 29 May 2024
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