AFG20 v Minister for Immigration & Anor
[2020] FCCA 1361
•19 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFG20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1361 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.417, 422B, 424A, 430. Immigrants and Emigrants Act (Sri Lanka), s.45. |
| Cases cited: AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008 DHW17 v Minister for Home Affairs [2019] FCA 985 |
| Applicant: | AFG20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 170 of 2020 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 4 May 2020 |
| Date of Last Submission: | 4 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 19 June 2020 |
REPRESENTATION
| Advocate for the applicant: | Mr Taylor |
| Solicitors for the applicant: | Sydney West Legal & Migration |
| Counsel for the respondents: | Mr Tran |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The applicant’s application be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed, unless agreed.
The first respondent file written submissions on the question of costs within 7 days.
The applicant file written submissions in reply on the question of costs within 14 days.
AND THE COURT NOTES THAT:
(A)Each party should indicate, in their written submissions pursuant to orders 3 and 4 above, whether they are agreeable to the making of orders in relation to costs in chambers.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 170 of 2020
| AFG20 |
Applicant
and
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the tribunal”) to affirm a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”) to refuse to grant the applicant a protection visa.
The applicant filed an amended application for judicial review on 5 March 2020 in which four grounds of review were raised. The applicant indicated in his written submissions[1] and his oral submissions that:
a)he did not press ground 1A or ground 2; and
b)the matters contained in each of those grounds were relevant to ground 3, in particular, the tribunal’s failure to refer the matter to the Minister under section 417 of the Migration Act 1958 (Cth) (“the Act”).
[1] Applicant’s written submissions filed 17 April 2020.
At the hearing, the applicant’s representative made the following opening submission in relation to the grounds of review:
The preparation of the matter clarified the issues, which are relevantly in dispute in this court. Fundamentally, they boil down to the tribunal taking it upon itself – in the first instance, taking it upon itself to come to an opinion without any apparent reason or evidence to support that opinion that Sri Lanka does not punish asylum seekers who fled using a fraudulent passport. ... and the subsequent remaining issue … is that the tribunal’s decision not to make a referral to the Minister on the basis of compelling and compassionate circumstances under – for a recommendation for the exercise of power under section 471 was affected by a misunderstanding of the policy, and that the tribunal member indirectly understood the policy to require an impact on an Australian citizen. …
The policy can and does take into account exceptional circumstances - … and the … tribunal found that there were a measure of compelling circumstances, but the absence of a connection to an Australian citizen tipped the balance against the member exercising that. However we say that that was an incorrect understanding of the policy. So those are the two fundamental issues which we are raising for dispute in this court today.[2]
[2] Transcript page 2 at lines 19 to 37.
In his written submissions, the applicant indicated that he sought to add a further particular to ground 1, namely that the applicant destroyed his own genuine Sri Lankan passport.[3]
[3] Applicant’s written submissions filed 17 April 2020 page 2 at paragraph 8.
In the first respondent’s written submissions, the Minister reserved his position on whether to oppose leave being granted on the basis that it was difficult to see how the proposed particular would be drafted.[4]
[4] First respondent’s written submissions filed 23 April 2020 page 6 at paragraph 35.
At the hearing, no submissions were made in relation to this proposed variation to the particulars to ground 1. In any event, for the reasons which follow, any amendment to the particulars attached to ground 1 along the lines indicated by the applicant would not have altered the conclusions that I have reached.
Further, at the hearing, the applicant indicated that although ground 1A was no longer being pressed, ‘the issue does still remain for… ground 3’.[5]
[5] Transcript page 2 at lines 44 to 46.
Later, he said ‘1A is not pressed other than as submission in relation to the 417 referral.’[6] For the reasons below, the conclusions I have reached in relation to ground 3 would not be affected by the inclusion of a further particular in the terms of ground 1A.
[6] Transcript page 3 at lines 18 and 19.
Background
The applicant is a Sri Lankan national of Tamil ethnicity and Roman Catholic faith.[7]
[7] First respondent’s written submissions filed 23 April 2020 page 2 at paragraph 4.
The applicant’s mother, also Sri Lankan, arrived in Australia in 2012 as an irregular maritime arrival. She obtained permanent residence in Australia as a holder of a class XE subclass 790 protection visa. [8]
[8] First respondent’s written submissions filed 23 April 2020 pages 2 and 3 at paragraph 4.
The applicant arrived in Australia on 16 June 2019 as an unauthorised air arrival.[9] He declared that he departed Sri Lanka illegally using a fraudulent passport and that he destroyed his genuine passport.[10]
[9] Court book page 780 at paragraph 14.
[10] Court book page 780 at paragraph 15.
The applicant was discovered to be in possession of a false passport upon his arrival in Australia, which led to him being taken into immigration detention.[11]
[11] Court book page 342 at part 3 and page 796 at paragraph 74.
In response to a question as to why he left his country in his application for a protection visa, the applicant stated:
I suffered during the war and after the war as the Government committed atrocities against the Tamil people. I saw my father killed by the shelling. I lots (sic) of people killed by the shelling. Everything happened there. When we were running at the end of the saw (sic) general public (civilian) people getting shot by the army and falling down. By chance my mother and I survived. My father was killed by the shelling. Tortures and rapes happened in the … camp.
My father and uncles had been in the LTTE. My mother was tortured by the Sri Lankan authorities and had to flee. I did not want to live in Sri Lanka any more and wanted to flee. I wanted to be with my mother.[12]
[12] Court book page 41 at paragraph 76.
The applicant further stated in his visa application that he also feared being harmed by the people smuggling syndicate and the government if he was returned to Sri Lanka.[13]
[13] Court book page 41 at paragraph 77.
The applicant sought to have his application ‘joined’ with his mother’s application.[14] His mother also sought to apply jointly with her son for a Safe Haven Enterprise Visa.[15]
[14] Court book page 21.
[15] Court book page 51.
On 17 July 2019, the applicant provided a statutory declaration in which he set out his claims in more detail, namely that:[16]
a)his father was a member of the former Liberation Tigers of Tamil Eelam (“LTTE”);
b)he witnessed his father and his uncle’s wife being killed in the civil war and was very traumatised by this;
c)he was also traumatised by his mother being tortured by the authorities and leaving Sri Lanka as a refugee;
d)he suffered discrimination in Sri Lanka but mostly wanted to live in Australia to be with his mother;
e)he initially obtained a genuine Sri Lankan’s passport in 2010 and used this to travel to Malaysia in 2017 to see his mother;
f)he organised to flee to Australia through what he referred to as an ‘agent’ and a ‘smuggler’ who gave him a false passport, and he followed their direction to destroy his genuine passport on the plane on the way to Australia;
g)he feared that if he returned to Sri Lanka he would be arrested, questioned and detained for having obtained and used a false passport; and
h)he believed that due to his family connections to the LTTE and being a Tamil male from the north, he faced a higher risk of being harmed in custody and that he would be subjected to inhumane and degrading treatment.
[16] Court book pages 54 and 55.
On or about 21 July 2019, detailed supplementary submissions were provided to the delegate on behalf of the applicant. Relevantly, these submissions stated:
We refer to our client who has raised claims concerning fears of being persecuted and significantly harmed through the process of being investigated, charged, remanded, and imprisoned for up to 5 years for the offence of using a false Sri Lankan passport under the Immigrants and Emigrants Act s.45.[17]
[17] Court book page 65.
The supplementary submission attached, among other things, country information from 2001. The representative for the applicant stated that the country information report from 2001:
indicated that at any one time many hundreds of people were subject to lengthy remand and imprisonment for having attempted to leave Sri Lanka by air using false documents. We thus distinguish between the information within the DFAT Sri Lanka 2018 country information report…[18]
[18] Court book page 66.
On 30 July 2019, the applicant was invited to attend an interview with a delegate of the first respondent to discuss his application on 12 August 2019.[19]
[19] Court book pages 114 to 115.
On or about 15 August 2019, further detailed written submissions were provided to the delegate attaching further country information from the United Kingdom Home Office, namely the Report of a Home Office Fact Finding Mission Sri Lanka: Treatment of Tamils and People who have a real or perceived association with the former Liberation Tigers of Tamil Eelam (LTTE) 2016’ (“Home Office Report”).[20]
[20] Court book pages 142 to 144.
The applicant’s representative stated that the Home Office Report ‘indicat[ed] a particular aggressiveness of the Sri Lankan authorities against those who left using false passports.’[21]
[21] Court book page 138.
It was further submitted on behalf of the applicant:
It is patently clear that those who leave on false passports are labelled as criminals, denied bail, charged, remanded, not bailed, and punished. Unlike those who leave on a boat, those who leave with a false passport are not considered as victims, but as criminals.[22]
[22] Court book page 140.
The applicant’s representative also attached a detailed paper entitled ‘Danish Immigration Service Security and human rights situation, entry and exit procedures and personal documentation. Report on fact-finding mission to Sri Lanka 1-12 October 2001’ (“Danish Report”).[23] In particular, the applicant relied upon the following statement:
The treasurer of the Forum for Human Dignity (FHD) stated that 40 clients of his organisation are being held in Negombo prison under the terms of the “Immigrants and Emigrants (Amendment) Act of 1998” for attempting to leave the country illegally on false documents. As other interlocutors stated, the Act does not allow for the granting of bail, and thus some of these individuals have been in detention since January 2001.[24]
[23] Court book pages 145 to 227.
[24] Court book page 215.
Further detailed written submissions were submitted on behalf of the applicant on 18 and 19 August 2019. These submissions addressed some of the matters which were put to the applicant during the hearing, referred to the Danish Report and the Home Office Report, and outlined the reasons the applicant ought not to be returned to Sri Lanka.[25]
[25] Court book pages 234 to 244.
An extract of the Immigrants and Emigrants Act (Sri Lanka) (“I & E Act”) was included in the court book.[26] The applicant’s representative also provided an extract of a newspaper article in relation to passport fraud.[27]
[26] Court book pages 296 to 328.
[27] Court book pages 335 to 337.
On 28 August 2019 the delegate provided the applicant with its decision.[28] The delegate found that the applicant had departed Sri Lanka lawfully and had only destroyed his legitimate Sri Lankan passport afterwards on his journey to Australia.[29] In light of this, the delegate did not need to consider the possible consequences to the applicant had he departed on a fraudulent passport.
[28] Court book pages 338 to 364.
[29] Court book pages 351, 352 and 357.
Notwithstanding not having to do so, the delegate addressed the counterfactual and said:[30]
The applicant’s representative provided a submission relating to a mandatory jail sentence of between 1 to 5 years associated with departing Sri Lanka on a bogus passport in support of his claims. However, as noted I do not accept he departed illegally, but in [any] case, any penalties for departing illegally using a bogus passport is through the application of a law of general application … Such penalties are laws of general application, used for legitimate state objectives of controlling the country’s border and to combat people smuggling. The screening process is similar for all persons returning to Sri Lanka voluntarily or by escort on temporary travel documents, regardless of ethnicity.
[30] Court book page 357.
The delegate went on to say:[31]
I have considered the issues of if I were to accept that the applicant departed using a bogus passport (which I do not) or that the Sri Lankan authorities may suspect he had destroyed his own passport or used a bogus passport in an attempt to enter Australia (a chance I find remote, considering this information would not be provided by the Australian government to the Sri Lankan government). In such a scenario, the applicant might be charged for departing illegally using a bogus passport or discarding/destroying [an] original passport. I accept that in such a scenario he may be detained for this reason, and may even be potentially jailed. Any such penalties would be for breaches of laws of general application. As such these penalties would not amount to persecution for any reason set out in subsection 5J(1)(a) of the Act. Considering the applicant’s profile, I consider any per chance of him facing abuse or torture while being detained on arrival, or even being potentially jailed to be remote.[32]
[31] Court book page 358.
[32] See also court book pages 359 -360 where the delegate also considers this counterfactual in the context of assessing the complementary protection criteria.
The delegate concluded that the applicant did not meet the criteria for refugee status nor did he satisfy the complementary protection criteria.[33]
[33] Court book pages 359 and 360.
On 28 August 2019, the applicant filed an application for review with the tribunal. He was invited to attend a hearing before the tribunal on 14 November 2019.[34] However, the hearing was rescheduled to 3 December 2019 in response to a request from the applicant’s representative for more time.[35]
[34] Court book page 376 to 377.
[35] Court book pages 378, 382 and 383.
Prior to the hearing, the applicant’s representative provided further information and submissions in support of the applicant’s claims.[36]
[36] Court book pages 389 to 428.
The applicant’s representative provided the following further material to the tribunal member on or about 16 or 17 December 2019:
a)a confidential report from the applicant mother’s treating counsellor;[37]
b)further country information in support of a request to suppress the name of a lawyer who provided information in support of the applicant’s claim;[38]
c)death certificate of the applicant’s aunt and the bar lift letter for the applicant’s mother;[39] and
d)documents relating to court proceedings in Sri Lanka.[40]
[37] Court book pages 430 to 432.
[38] Court book pages 433 to 442.
[39] Court book pages 443 to 447.
[40] Court book pages 448 to 458.
On 18 December 2019, the applicant’s representative provided the tribunal with further detailed written submissions in support of the applicant’s claims.[41] It was submitted, among other things, that the applicant had left Sri Lanka on a false passport.[42]
[41] Court book pages 479 to 489.
[42] Court book page 482 at paragraph 11.
Relevantly for present purposes, the applicant’s representative made detailed submissions about the consequences faced by the applicant for using a false passport. For example, the applicant’s representative stated:
… obtaining and using a false passport … is a distinct offence under s.45(1)(f) of the Immigrants and Emigrants Act. It is a much more serious offence than simply departing illegally … because passport and identity fraud, are serious crimes against the Sri Lankan Government. It is a matter of public record that States around the world take passport fraud very seriously and those who commit this crime.[43]
[43] Court book page 482 at paragraph 12.
The applicant’s representative also provided the following additional information to the tribunal:
a)country information on or about 20 December 2019;[44]
b)further documentation in support of his claims on 22 December 2019;[45]
c)information about the ‘general state practice of imprisonment of those who use fraudulent passports, in particular by the country or which the false passport has been fraudulently obtained’ on 23 December 2019;[46]
d)a report by the United Kingdom Home Office in relation to the treatment of Tamils with real or perceived associations with the LTTE on 23 December 2019;[47]
e)further written submissions in relation to the principles of family unity on 29 December 2019;[48]
f)written submissions in relation to further violations by Sri Lanka of the applicant’s fundamental rights on 30 December 2019;[49] and
g)further supplementary written submissions on 5 January 2020, including further country information.[50]
[44] Court book pages 532 to 616.
[45] Court book pages 655 to 659.
[46] Court book pages 633 to 654.
[47] Court book pages 670 to 675.
[48] Court book pages 682 to 700.
[49] Court book pages 715 to 724.
[50] Court book pages 726 to 774.
The tribunal’s decision
On 13 January 2020, the tribunal affirmed the delegate’s refusal of the applicant’s application for a protection visa.[51]
[51] Court book page 815 at paragraphs 168 to 172.
In its statement of decision and reasons, the tribunal:
a)outlined the criteria for granting a protection visa;[52]
[52] Court book page 779 at paragraphs 4 to 8.
b)set out in detail the relevant background, the applicant’s claims and the evidence relied upon;[53]
[53] Court book pages 780 to 790 at paragraphs 11 to 52.
c)included an extract of the most recent country information issued by the Department of Foreign Affairs and Trading (“DFAT”);[54]
d)detailed its consideration of the claims and set out its findings;[55]
e)found that the applicant did leave Sri Lanka on a false passport;[56]
f)accepted that the ‘applicant is possibly liable for passport fraud and other breaches of the I & E Act’;[57]
g)considered each of the applicant’s claims individually and then considered them cumulatively;[58]
h)set out its consideration of the applicant’s claim that he was a member of the same family unit as his mother who was found to satisfy the criteria for a protection visa;[59]
i)concluded that he did not meet the relevant criteria for being a member of the same family unit;[60]
j)declined to accede to the applicant’s request that it recommend the Minister intervene in this matter pursuant to section 417 of the Act.[61]
Grounds for review
[54] Court book pages 790 to 793 at paragraph 54.
[55] Court book page 793 at paragraph 55.
[56] Court book page 805 at paragraph 117.
[57] Court book page 806 at paragraph 119.
[58] Court book pages 812 and 813 at paragraphs 153 to 155.
[59] Court book pages 813 and 814 at paragraphs 156 to 161.
[60] Court book page 814 at paragraph 162.
[61] Court book page 814 at paragraphs 163 to 167.
Ground 1
The first ground in the applicant’s amended application was in the following terms:
The Tribunal’s findings that the applicant did not face a real risk of detention and imprisonment over the offence of using a fraudulent passport was legally unreasonable, and otherwise failed to accord with the requirements of natural justice or procedural fairness under ss 425 of the Act.
Particulars
i.The Delegate found that there was a real possibility that the applicant would be imprisoned over the offence of use a fraudulent passport.
ii.There was a requirement for the Tribunal to clearly indicate to the applicant that it was considering a finding that the applicant would not face any significant punishment over this offence.
iii.The Tribunal erred by considering without evidence that the punishment for passport fraud would be the same as punishment for illegal departure (on a boat).
iv.The Tribunal considered irrelevant information by applying the DFAT country of origin information concerning illegal departure by boat as analogous to the crime of passport fraud/use a false passport.[62]
[62] Applicant’s amended application filed on 5 March 2020 page 4 at paragraph 1.
At the heart of this ground was an objection to the conclusions reached by the tribunal about the possible consequences for the applicant if he were to return to Sri Lanka in light of the fact that he left using a fraudulent passport.
Particulars (i) and (ii) went to the issue of the different reasoning adopted by the delegate and the tribunal. I will deal with them together.
Particulars (iii) and (iv) went to the issue of the tribunal’s assessment of the risks associated with the applicant having left Sri Lanka on a fraudulent passport in breach of section 45(1)(f) of the I & E Act. It was alleged that the tribunal acted unreasonably and/or considered irrelevant information in reaching its conclusions, namely the DFAT country information. It was argued that the tribunal did not consider the country information provided by the applicant including the Home Office Report and information about actual cases in which persons who had attempted to leave Sri Lanka on fraudulent documents were imprisoned pending the determination of their case. I will deal with these aspects of ground 1 together.
Ground 1 – particulars (i) and (ii)
As stated, particulars (i) and (ii) went to the different conclusions reached by the delegate and the tribunal as to whether the applicant left Sri Lanka using a fraudulent passport. It was submitted for the applicant that if the tribunal was going to come to a different conclusion than that of the delegate on this issue, it had an obligation to put the applicant on notice and provide him with an opportunity for the applicant to address him on that issue.
In principle, that position is correct. However, for the reasons which follow I do not accept that the tribunal failed in that duty.
As noted by the High Court in SZBELv Minister for Immigration and Multicultural and Indigenous Affairs &Anor (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”):
The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.
… The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.[63]
[63] SZBELv Minister for Immigration and Multicultural and Indigenous Affairs &Anor (2006) 228 CLR 152; [2006] HCA 63 at [33] and [34].
It was in this context that the High Court went on to say:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. (emphasis added)
The High Court added:
… unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.[65]
[65] SZBELv Minister for Immigration and Multicultural and Indigenous Affairs &Anor (2006) 228 CLR 152; [2006] HCA 63 at [36].
As to how the tribunal must indicate to the applicant that there are issues which may be dispositive and which were not considered by the delegate, the High Court relevantly said in SZBEL that there are many ways in which this might be done, depending on:[66]
a)the circumstances of the case;
b)the issues in dispute; and
c)the manner in which matters are in put to the applicant during a hearing.
[66] SZBELv Minister for Immigration and Multicultural and Indigenous Affairs &Anor (2006) 228 CLR 152; [2006] HCA 63 at [47].
The High Court further stated in SZBEL:
…where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
In this case, it is evident the applicant was aware the question of whether he had left Sri Lanka on a fraudulent passport was an issue before the tribunal and that he was provided with the opportunity to and did provide information to the tribunal relevant to this issue.
Firstly, it is apparent from the delegate’s decision that the question of whether he had left Sri Lanka on a fraudulent passport was a key issue before the delegate.[68] Whilst the delegate found he had not left on a fraudulent passport, the delegate went on to consider the impact on his assessment of the applicant’s claim if indeed he was found to have left on a fraudulent passport.
[68] Court book pages 359 and 360.
Relevantly, in the context of considering the complementary assessment claim, the delegate said:
I have considered the scenario that the applicant departed Sri Lanka using a bogus passport, destroyed his own passport and this information came to light when the applicant was going through the arrival process on return to Sri Lanka.
… I note that as presented by the applicant’s representative, he would be facing a mandatory 1 to 5 years imprisonment. While I note the provisions under the Sri Lankan Emigrants and Immigrants Act for using a false passport and disposing of a Sri Lankan passport, I have not found any country information in the past several years that supports the imposition of this penalty on an individual whose travel has been facilitated by a people smuggler is being currently enforced (emphasis added).[69]
[69] Court book page 359.
It is clear from this excerpt that the applicant was on notice not only that the issue of whether he had left Sri Lanka on a fraudulent passport was an issue, but also that the question of what country information existed to support his assertion about the type of penalty imposed for the commission of such an offence was also directly an issue.
Secondly, in the proceedings before the tribunal, the applicant himself advocated for a finding that he had in fact departed Sri Lanka with a fraudulent passport.[70] Consequently, the applicant’s representative submitted significant material addressing the question of the penalties to which he would be subjected if he were returned to Sri Lanka given that he had left the country using a fraudulent passport in breach of the I & E Act.
[70] Court book page 805 at paragraph 115.
It is difficult to see how he can now claim that he has not been afforded procedural fairness in determining whether he faced a real risk of harm on return as a consequence of having left the country using false papers.
In addition, it is clear from the tribunal’s decision record that the tribunal sought further information from the applicant about his use of his passports on departing Sri Lanka.[71]
[71] Court book page 805 at paragraph 117.
I therefore find that the applicant was on notice that one of the issues before the tribunal was whether he in fact left Sri Lanka using fraudulent documents, and if so what risks he would face if he were to return to Sri Lanka. Not only was he provided an opportunity to address this issue, but, as noted above, he in fact did provide significant material addressing this issue.
Ground 1 – particulars (iii) and (iv)
At the hearing before this court, the applicant’s representative said:
… ground 1 itself rests on … section 45(1)(f) … which fundamentally … imposes a maximum penalty of five years imprisonment for passport offences – passport fraud.
There’s also another offence for passport destruction … But ultimately … those range of issues go together, and the question, really, ultimately was whether it was a serious offence or whether it was a minor offence in the eyes of the Sri Lankan authorities. And our submission was that there was no actual probative evidence or reasoning on the basis which the tribunal could determine that it was a minor offence rather than a serious offence.[72]
[72] Transcript page 4 at lines 3 to 15.
At the heart of this aspect of ground 1 is the applicant’s claim that because he left Sri Lanka on a fraudulent passport, he was at greater risk of being imprisoned on his return and in turn at greater risk of being subjected to inhumane treatment during any such period of imprisonment. In essence, the applicant submitted the tribunal improperly concluded, without any evidence, that leaving the country on a fraudulent passport was not a serious offence.[73]
[73] Transcript page 5 at lines 23 to 29.
As evident from the background summary I have outlined above, the applicant’s representative provided various documents to the tribunal which supported the argument that the applicant faced a risk of imprisonment on return for having left Sri Lanka on a fraudulent passport.
The applicant submitted:
the Tribunal denied the applicant procedural fairness by failing to consider all of the country evidence, or made an unreasonable consideration of that evidence and country information, to come to an unreasonable finding.[74]
[74] Applicant’s written submissions filed 17 April 2020 page 6 at paragraph 32.
For example, the applicant took issue with the tribunal’s comments at paragraph 127 of its decision[75] on the basis that the reference to passengers on a people smuggling boat was not relevant to the applicant, and moreover, the comments reportedly made by the Attorney General were ‘quite clearly wrong according to the Home Office report’.[76]
[75] Court book page 807.
[76] Transcript page 12 at lines 24 to 30.
The applicant further submitted that the whilst the tribunal addressed the question of risk of harm to the applicant as a result of his illegal departure from Sri Lanka, it did not specifically address detail contained in the Home Office Report about the significant number of persons charged and remanded to prison for the use of fraudulent documents. It was further submitted that the tribunal failed to appreciate the distinction between illegal departure per se and departure using false documents.
A further aspect of this ground is that the tribunal unreasonably assessed as irrelevant the following evidence put before it by the applicant:
a)a letter from a Sri Lankan attorney concerning serious punishments meted out to those who depart using false passports; and
b)Sri Lankan court documents relating to another individual who was charged with the use of a fraudulent passport and who spent considerable time in prison.
In support of his submissions in relation to this aspect of ground 1, the applicant relied upon the decision in AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008 (“AWU15”). In essence, it was submitted that a similar finding ought to be made in this case.
In AWU15, it was argued that the tribunal made a jurisdictional error by failing to consider a relevant consideration, namely the practical and legal consequences for the appellant of having a ‘non-bailable’[77] warrant issued for the applicant’s arrest. It was argued that the tribunal had not considered the fact that the appellant would face time in detention before he is sentenced for the offence of desertion.[78]
[77] AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008 at [48].
[78] AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008 at [49].
It was further submitted on behalf of the appellant in AWU15 that the tribunal also fell into error because it failed to give ‘proper, genuine and realistic consideration’ to country information regarding the prison conditions in Pakistan in circumstances where that information was before the tribunal.[79]
[79] AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008 at [52].
In the matter before this court, the applicant submitted the same error occurred.
In AWU15, the Minister opposed the application for judicial review on the basis that it:
a)sought impermissible merits review; and
b)‘ignore[d] the principle that the choice of and weight to be given to country information is a matter for the Tribunal.’ [80]
[80] AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008 at [61].
In rejecting the Minister’s submissions in AWU15, the Federal Court made a distinction between the case actually advanced by AWU15 and that considered by the tribunal. The tribunal considered the possibility that AWU15 would face a short period of detention for having departed Pakistan illegally. The Federal Court said:
However, that was not AWU15’s case. His case was that he would be subject to arrest for a ‘non-bailable’ offence and for that reason would face, at a minimum, a long period of pre-trial imprisonment in circumstances that would be distinctly different from those facing ordinary returnees. His case was that he would face prisoner abuse, including torture, by gaol staff in circumstances where accountability mechanisms for checking prisoner abuse, corruption and other malpractice on the part of prison staff were non-existent or illusory.[81]
[81] AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008 at [66].
The Federal Court went on to consider what was required to establish the requisite intent for the purpose of the definition of ‘cruel or inhuman treatment or punishment’ in the context of assessing whether the criteria for complementary protection were satisfied. Kerr J said:
… I reject the Minister’s submission that SZTAL is authority for the proposition that in this quite different factual context, “no matter how poor the conditions [are] found to be” in Pakistan’s prisons they will be necessarily irrelevant to Australia’s complementary protection obligation with respect to the Appellant … that proposition ignores the aspects of the judgment that provide that “evidence that a person is aware that his or her conduct will certainly produce a particular result may permit an inference of intent to be drawn” (at [27]) and that in some cases “the degree of foresight may render the inference compelling” (at [29]). Thus an inference of such intent potentially might be drawn if there is evidence before the Tribunal to establish that the authorities of a particular country are aware that torture or degrading treatment is routinely occurring in their prisons by the actions of state officials and there is evidence that that conduct is tolerated by the authorities.[82]
[82] AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008 at [67].
It was in this context that Kerr J then went on to say:
In my view it is self-evident that there was material … in the country information before the Tribunal which, at least potentially, may have justified such a finding both with respect to prison conditions in Pakistan and the impunity effectively granted by that state to state officials who torture or degrade prisoners. I reject the proposition that because the prime focus of AWU15’s concern when he appeared before the Tribunal was that he was at risk of the imposition of the death penalty, his alternative claims that he would otherwise face (at least) a period of prolonged pre-trial imprisonment were capable of being dismissed or disregarded. They were claims clearly advanced, albeit in the alternative to his primary claim that he might be executed which is no longer pressed.
… It is not for the Court to evaluate the plausibility of the country information to which he Court has referred above at [53] which was before the Tribunal. It is sufficient that the Court accepts that the Tribunal fell into jurisdictional error, given that it was in possession of that country information, when it failed to address a significant claim AWU15 had advanced before it.[83]
[83] AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008 at [68] and [69].
The applicant sought to rely on AWU15 for the proposition that although the E & I Act may be a law of general application which might result in the applicant being imprisoned on his return to Sri Lanka, the tribunal was nonetheless required to consider whether the applicant is likely to be imprisoned and if so, whether he would suffer a real risk of harm in the relevant sense.[84]
[84] Transcript page 40 at lines 20 to 34.
As is evident from the excerpt from AWU15 above, the Federal Court concluded the tribunal failed to consider the applicant’s claim that he faced a real risk of harm on return to his home country in circumstances where a warrant for his arrest for a non-bailable offence had already been issued. The applicant, if returned to his home country, faced a long period of pre-trial imprisonment.
In those circumstances, and where there was country information which suggested that prison conditions in Pakistan (the relevant country of origin in AWU15) were poor and prison staff were not held to account for torture or degrading treatment of prisoners, it was held that the tribunal ought to have considered whether the applicant in those circumstances might have demonstrated a real risk of harm. The court held it ought to have done so but failed to do so.
In my view, however, AWU15 is distinguishable from the present case. Here, no arrest warrant was issued, and importantly, the tribunal did consider the claims made. It simply came to a conclusion contrary to that advocated for by the applicant.
The question remaining for consideration under ground 1 is whether the tribunal’s treatment of the evidence put before it by the applicant was legally unreasonable or otherwise disclosed any jurisdictional error.
In particular, there are two aspects of the applicant’s claim which require consideration:
a)whether the tribunal’s finding that the legal advice provided from a Sri Lankan lawyer about the operation of the E & I Act and the documents regarding the treatment of individuals charged with offences under section 45(1)(f) were not relevant to the applicant’s claim was legally unreasonable (which I will deal with below under “court documents and legal advice”); and
b)whether the tribunal overlooked and/or failed to consider the country information provided by the applicant’s representative, in particular the Home Office Report and the Danish Immigration Report, and if so, whether this gave rise to a jurisdictional error (which I will deal with below under “country information”).
Section 45 of the I & E Act sets out a series of offences under that Act.[85] It includes, but is not limited to, an offence of using or having in one’s possession, without lawful excuse, any forged, altered or irregular passport. It also includes offences related to illegally entering or leaving Sri Lanka, tampering with a passport and various other matters. As conceded by the applicant in oral submissions, section 45(f) which specifically relates to the use or possession of a fraudulent passport, is ‘nested’ within the other aspects of section 45.
[85] Court book pages 315 to 317.
Court documents and legal advice
The tribunal made express reference to the information provided by the applicant in support of his claim that the Sri Lankan authorities take passport fraud very seriously.[86] Specifically, the tribunal referred to the redacted court documents as well as the legal advice provided by a Sri Lankan legal officer.
[86] Court book page 806 at paragraph 122.
The tribunal went on to set out its consideration of that information and ultimately found that the information provided on behalf of the applicant was of little relevance to his circumstances.[87] That finding was, in in my view, reasonably open to the tribunal.
[87] Court book page 806 at paragraph 123.
There was no evidence of the circumstances of the individual(s) concerned other than a record of their court attendance. Moreover, those records related to charges which were laid in 2009 some ten years prior to the tribunal’s consideration of the applicant’s claim.
Having considered this material, it was open to the tribunal to conclude that there was little relevance in it to the applicant’s claims. That conclusion does not give rise to any jurisdictional error.
In relation to the legal advice provided by a Sri Lankan legal officer, it was also open to the tribunal to conclude that the legal advice was no more than a statement of the operation of section 45 of the I & E Act and provided no advice specific to the applicant’s situation.
The applicant’s claim in this regard fundamentally takes issue with the conclusions reached by the tribunal and seeks impermissible merits review.
Country information
It was submitted on behalf of the applicant that it was legally unreasonable for the tribunal to conclude that being found to have been in possession of and having used a false passport was not a serious offence. The applicant submitted that the tribunal unreasonably relied on the DFAT report which did not address the question of the penalties applicable to a person who had left Sri Lanka on a fraudulent passport.[88]
[88] Transcript page 5 at lines 17 to 21.
The applicant argued this was particularly inappropriate given there was other country information before the tribunal which did show there was a significant risk of harm to people found to have departed Sri Lanka in such circumstances, namely the Home Office Report and the Danish Report.
Moreover, it was submitted on behalf of the applicant that the tribunal’s failure to consider the abovementioned reports had led it into error as both of the reports clearly distinguished between the treatment afforded to those individuals returning to Sri Lanka who had left Sri Lanka illegally per se compared to those who departed illegally with the use of false documents.[89]
[89] Applicant’s written submissions filed 17 April 2020 pages 4 and 5 at paragraphs 23 and 24.
In determining whether the tribunal overlooked the Home Office Report and/or the Danish Report, it is important to consider not only those documents in isolation but the submissions that accompanied them.
An extract of the Home Office Report was provided to support the applicant’s argument that the Sri Lankan authorities take a ‘particularly aggressive’ approach to those who left Sri Lanka using false passports.[90]
[90] Court book page 138.
The Home Office Report:
a)does not itself refer to the consequences for a person returning to Sri Lanka after having left using a fraudulent passport; and
b)contains the following statement:
Being a former member of the LTTE is not the target, the police were looking for the thousands of Sri Lankans who left the country using forged identities – it is those criminals who were being looked for, because there is a need to know the true identity of the returning person.[91]
[91] Court book page 143 at paragraph 21.1.8.
Further, the Danish Report states:
The treasurer of the Forum for Human Dignity (FHD) stated that 40 clients of his organisation are being held in Negombo prison under the terms of the ‘Immigrants and Emigrants (Amendment) Act of 1998’ for attempting to leave the country illegally on false documents.[92]
[92] Court book page 215.
The tribunal does not expressly refer to either the Home Office Report or the Danish Report in its reasons. However, the failure to refer expressly to these reports, is not, in my view determinative.
As was noted in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 (“SZSRS”), section 430 of the Act requires the tribunal ‘to set out its findings on questions of fact it considers material, together with the evidence and other material on which those findings were based.’[93]
[93] Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [33].
In SZSRS the Full Court said:
The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight (case references omitted).[94]
[94] Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [34].
In this case, the tribunal accepted that the applicant had used a fraudulently obtained passport to depart Sri Lanka.[95] The tribunal further found that as such the applicant was ‘possibly liable for passport fraud and other breaches of the I & E Act’.[96]
[95] Court book page 805 at paragraph [117].
[96] Court book page 806 at paragraph [119].
In light of these findings, the tribunal then went on to consider what if any consequences the applicant would face if he were to return to Sri Lanka. As stated above, it referred to the submissions filed on behalf of the applicant which attached and made express reference to the Home Office Report and the Danish Report.
It set out its consideration of the DFAT report, in the face of a submission that the DFAT report did not deal with the extent of punishment which a person in the applicant’s position would face on his return to Sri Lanka and rejected that submission.
Relevantly, the DFAT report states:
DFAT assesses that the Sri Lankan authorities differentiate between fare-paying passengers and the facilitators or organisers of irregular migration. … Unlike facilitators or organisers, fare-paying passengers are usually released on bail and generally receive only a fine for breaking the I & E Act.[97]
[97] Court book page 792 at paragraph [5.39].
The tribunal also noted the submissions made by the applicant’s representative about the nature of penalties imposed on persons charged with passport fraud.[98]
[98] Court book page 806 at paragraph [122].
In addition, the tribunal specifically referred to the legal submission filed on the applicant’s behalf addressing his illegal departure from Sri Lanka on 15 August 2019, which attached the Home Office Report and the Danish Report.[99] This submission expressly extracted the relevant sections of each report relied upon and concluded with the following statement:[100]
It is patently clear that those who leave on false passports are labelled as criminals, denied bail, charged, remanded, not bailed, and punished. Unlike those who leave on a boat those who leave with a false passport are not considered as victims, but as criminals.[101]
[99] Court book page 784 at paragraph [24].
[100] Court book pages 138 to 140.
[101] Court book page 140.
Similarly, the tribunal specifically referenced the further submissions made on 18 August 2019, again including country information which, among other things relates to ‘fraudulent use of passports and associated penalties’.[102] These submissions again expressly referenced the Home Office Report and the Danish Report with the relevant sections extracted in the submissions themselves.[103]
[102] Court book page 784 at paragraph 25 and page 785 at paragraph [26].
[103] Court book pages 238 to 240.
It is clear from a fair reading of the tribunal’s reasons as a whole that the tribunal was aware of and considered each of the arguments advanced by the applicant that:
a)he faced an increased risk of harm on return because he had left on a false passport;
b)he relied on various reports to support this finding, including the Home Office Report and the Danish Report; and
c)he was of the view that this information ought to be preferred to the DFAT country information on the basis that the DFAT country information ‘was silent on the question of the extent of punishment for passport fraud’.[104]
[104] Applicant’s written submissions filed 17 April 2020 page 4 at paragraph 20.
There is no proper basis on which it could be said that the tribunal overlooked either the Home Office Report or the Danish Report.
Rather, the tribunal did not accept that the DFAT report was silent on this issue and it is evident from a fair reading of the its reasons that after considering the submissions made on behalf of the applicant, including by implication the extracts of the Home Office Report and the Danish Report, it preferred and relied upon the information in the DFAT report. This approach and the tribunal’s findings in this regard were reasonably open to be made by the tribunal.
It is to be noted that the Danish Report was produced in 2001, some eighteen years prior to the applicant’s application before the tribunal. The Home Office Report was produced in 2016.
It is not for this court to weigh the relative merits of differing country information. That is ultimately a matter for the tribunal.[105] In circumstances where the tribunal had before it more recent information about the treatment of returned asylum seekers, including those who had left Sri Lanka illegally, it was reasonable for the tribunal to have regard to the more recent country information.[106]
[105] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].
[106] DHW17 v Minister for Home Affairs [2019] FCA 985 at [21].
A fair reading of the tribunal’s reasons indicates that the tribunal engaged with the arguments put forward in the Home Office Report, as well as the other information provided by the applicant in support of his claim that offences of passport fraud are treated more seriously than other offences under section 45 of the I & E Act.[107] It is clear that the analysis in paragraph 121 of the tribunal’s reasons is in response to ‘the question of the extent of punishment [for] passport fraud under s.45(1)(f) of the I & E Act’ raised in paragraph 120.[108]
[107] Court book page 806 at paragraph [121].
[108] Court book page 806.
For each of these reasons, I am not satisfied that the tribunal overlooked the Home Office Report simply because it did not expressly refer to that document in its reasons in paragraphs 120 to 129.[109]
[109] Court book pages 806 to 808.
Finally, to the extent that the applicant claimed there had been a failure to afford the applicant procedural fairness, it was submitted by the first respondent that there was no proper basis for such a finding.
Section 422B of the Act provides that Division 4 of Part 7 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters to which the Division relates.
Section 424A of the Act sets out certain information which the tribunal is required to put to an applicant. Section 424A (3)(a) however, makes it clear that this does not include information which is generally described as country information.
The applicant was afforded procedural fairness.
For each of these reasons, this ground is not made out.
Ground 3
The applicant’s ground 3 was put in the following terms:
The Tribunal failed to afford procedural fairness under s.425 of the Act, failed to take into account relevant considerations, took into account irrelevant considerations, or otherwise made unreasonable findings in determining that the Applicant was not a member of the Same Family Unit as the Applicant’s mother.
Particulars:
a.The Tribunal was the primary fact finding tribunal with the primary jurisdiction for determination of whether the applicant was a member of the same family unit as another person who held a protection visa.
b.The Tribunal in finding that the applicant did not satisfy the ‘member of the same family unit’ provisions did not comply with the requirements of procedural fairness and/or natural justice as required by s.425.
c.The Tribunal applied the wrong test under Regulation 1.05A(2) in relation to dependency:
i.The test of psychological dependency does not require medical dependency but includes psychological interdependence
ii.The Tribunal did not take into consideration that the reason the applicant lived outside of the household was only through forced separation, and that he would live again in the same household in Australia and was financially dependent on his mother in Australia.
iii.The Tribunal findings that the applicant was not psychologically dependent on his mother was unreasonable.
iv.The Tribunal failed to determine whether the applicant was the family head for the purpose of determining whether the applicant’s mother was psychologically dependent on the applicant and therefore a member of the same family unit (pursuant to Regulation. 112(4)(d)).
v.The finding in respect of the applicant’s family unit affected consideration of whether the applicant suffered and would suffer serious harm if he returned to Sri Lanka.
vi.In the alternative to (v) above, the Tribunal’s decision not to exercise its discretionary power to recommend Ministerial Intervention under s.417 was legally unreasonable.[110]
[110] Applicant’s amended application filed on 5 March 2020 page 5 at paragraph 3.
In his written submissions, the applicant addressed this ground in the following way:
34.Ground 3 relates to the unreasonable refusal to exercise the discretionary power of the Tribunal to recommend to the Minister intervention under s.417.[111]
[111] Applicant’s outline of submissions filed 17 April 2020 page 6 at paragraph 34.
The substance of the applicant’s submissions in support of this ground was that in considering whether to recommend the Minister intervene under section 417, the tribunal did not properly consider all available grounds under the policy in force at the time, namely the PAM3 policy guidelines.[112]
[112] See copy of the PAM policy guidelines extracted in the court book at pages 689 to 690.
It was further submitted:
the Tribunal accepted that there were some compelling aspects of the applicant’s circumstances, namely his separation from his mother, but found that a she was not a citizen, the tribunal would not recommend to the Minister that he should seriously consider personally intervening in this matter on this occasion.[113]
[113] Applicant’s outline of submissions filed 17 April 2020 page 7 at paragraph 39.
It is not entirely clear that this is an accurate reflection of the tribunal’s reasoning in this regard.
A fair reading of the tribunal’s reasons shows that the reference in paragraph 167 to citizens is a reference to the applicant’s uncle and cousin referred to in paragraph 164 of the tribunal’s decision record.[114]
[114] Court book page 814.
Paragraph 164 of the tribunal’s reasons is a summary of the argument advanced by the applicant’s representative in favour of a referral for Ministerial intervention.[115] In this regard, the applicant’s representative said:
In respect of the jurisdiction of the Tribunal to recommend exercise of the Minister’s s.417 power, the interests of Australian citizens, the applicant’s uncle … and the applicant’s cousin … are affected.[116]
[115] Court book page 814.
[116] Court book page 690 at paragraph [18].
In any event, the real question in this ground is whether the tribunal’s consideration of the request for a referral for Ministerial intervention was a necessary part of the tribunal’s discharge of its review function and therefore any error in determining whether or not to make the recommendation could not amount to jurisdictional review.[117]
[117] Fernandez v Minister for Immigration and Border Protection (2015) 238 FCR 251; [2015] FCA 1265.
Deciding whether or not to refer a matter to the Minister for exercise of their discretion under section 417 is not part of the tribunal’s review function.
Without determining whether there is any error in that decision making process, any such error cannot therefore amount to jurisdictional error, as it does not result in:
a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.’[118]
[118] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [24].
The tribunal’s powers are confined by the terms of the Act. Considering whether to refer a matter to the Minister for his consideration under section 417 of the Act is not such a power.
The applicant has not pointed to any provision in the Act which empowers the tribunal to make a recommendation under section 417. The applicant appears to rely upon the PAM3 as the source of this power.
A similar argument to that advanced in this case was advanced in Fernandez v Minister for Immigration and Border Protection and Anor (2015) 238 FCR 251; [2015] FCA 1265 where the applicant similarly requested the tribunal to support an application for Ministerial intervention in the event that it did not grant the applicant’s application.
In that case, it was held that the PAM3 is not a direction made under section 499 of the Act and therefore does not impose a duty on the tribunal to consider the issue of Ministerial intervention.[119] Moreover, Robinson J said:
It has not been shown by the appellant that what the Tribunal said about Ministerial intervention was relevant to the discharge of its functions of review under the Migration Act. Put differently, I am not persuaded that the Tribunal’s referral or non-referral for Ministerial intervention was within the discharge of the Tribunal’s duty of review under the Migration Act.[120]
[119] Fernandez v Minister for Immigration and Border Protection (2015) 238 FCR 251; [2015] FCA 1265 at [80].
[120] Fernandez v Minister for Immigration and Border Protection (2015) 238 FCR 251; [2015] FCA 1265 at [81].
The same reasoning applies in this case. The applicant has not established how it is said that the tribunal’s decision not to seek Ministerial intervention falls within the discharge of its review obligations.
Accordingly, ground 3 is not made out.
Conclusion
As grounds 1 and 3 are the only grounds pressed by the applicant and neither ground has been made out, the applicant’s application is dismissed and the applicant is to pay the first respondent’s costs in a sum to be fixed.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 19 June 2020
[64] SZBELv Minister for Immigration and Multicultural and Indigenous Affairs &Anor (2006) 228 CLR 152; [2006] HCA 63 at [35].
[67] SZBELv Minister for Immigration and Multicultural and Indigenous Affairs &Anor (2006) 228 CLR 152; [2006] HCA 63 at [47].
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