AHL19 v Minister for Immigration
[2019] FCCA 2947
•28 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHL19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2947 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Authority erred in not getting new information or made a critical finding without probative evidence considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.473DC |
| Cases cited: Assistant Minister for Immigration v Splendido [2019] FCAFC 132 Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 DPI17 v Minister for Home Affairs [2019] FCAFC 43 EHF17 v Minister for Immigration [2019] FCA 1681 Hands v Minister for Immigration [2018] FCAFC 225 Fattah v Minister for Home Affairs [2019] FCAFC 31 Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v MZYTS (2013) 230 FCR 431 Minister for Immigration v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 MZZYE v Minister for Immigration [2015] FCA 1378 Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600 Plaintiff S156/2013 v Minister for Immigration (2014) 254 CLR 28 SZJTQ v Minister for Immigration (2008) 172 FCR 563 |
| Applicant: | AHL19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 163 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Solicitors for the Applicant: | Hodges Legal |
| Counsel for the Respondents: | Mr T Liu |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended by leave granted on 16 October 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 163 of 2019
| AHL19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 14 January 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The following statement of background facts is derived from the submissions of the Minister filed on 10 October 2019.
The applicant is a citizen of Sri Lanka. On 26 May 2017, the applicant lodged an application for a protection visa. On 20 November 2018, the delegate refused to grant the protection visa.[1] Pursuant to Division 2 of Part 7AA of the Migration Act 1958 (Cth) (Migration Act), the Minister referred the delegate’s decision to the Authority for a review.[2]
[1] Relevant Documents (RD) 154-167
[2] RD 173
The Authority in its decision acknowledged that the applicant through his representative provided a written submission which included some new information within the meaning of s.473DC of the Migration Act. The Authority gave reasons for not receiving that new information at [4]-[6]. The Authority also noted at [7] that the applicant urged “the IAA to get new information from the Department of Foreign Affairs (DFAT) related to the volatile situation in Sri Lanka at the present time.” The Authority declined to do so, stating at [7]:
I have considered this request, but given my consideration of the country information in respect of the applicant’s claims that is set out below and taking into account the IAA’s statutory objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3, I have decided not to get or request new information from DFAT or any other source.
The Authority then set out the applicant’s claims at [8] of its reasons. In summary, the applicant claims that he worked for the Liberation Tigers of Tamil Eelam (LTTE) but was not a member, he helped procure things for the LTTE but did not fire a weapon, he fled to Saudi Arabia because the Sri Lankan authorities were looking for him, he travelled back to Sri Lanka in 2013 before departing again to ultimately seek asylum in Australia, and he may still owe a large amount of money he previously borrowed to finance purchases of motorbikes for the LTTE.
The Authority accepted at [14] that the applicant had some involvement with the LTTE, including purchasing “motorbikes in his own name and on behalf of the LTTE and they would pay him in instalments for these purchases.” However, the Authority found in the same paragraph that “over a decade has passed since these events and given this very long period of time, I am not satisfied on the evidence before me, that there is a real chance that he would be subjected to any harm by these persons upon his return to Sri Lanka.”
Ultimately, the Authority concluded at [25] that “the applicant has not been of any adverse interest to the Sri Lankan authorities or imputed with any pro-LTTE opinion at any time”. The Authority made similar findings at [30] its reasons. On the basis of its findings, the Authority concluded that the applicant did not meet the refugee or complementary protection criteria.
The current proceedings
These proceedings began with a show cause application filed on 24 January 2019. The applicant now relies upon an amended application filed on 5 August 2019, for which I granted leave at the trial on 16 October 2019:
1. The Authority’s refusal to exercise its powers under s 473DC to obtain information about the current situation in Sri Lanka from DFAT or any other source was legally unreasonable
2. The Authority made a critical finding of fact without probative evidence:
Particulars
a. the Authority accepted that the applicant purchased motor bikes on behalf of the LTTE
b. the Authority accepted that applicant may still have debts owing as a result of these purchases
c. the Authority made a finding that sellers of the motor bikes would not seek to harm the applicant if he returned to Sri Lanka without any probative evidence to support that finding.
The only evidence I have before me is the book of relevant documents filed on 19 March 2019. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial.
Consideration
Ground 1 – did the Authority unreasonably refuse to exercise its powers under s.473DC of the Migration Act?
The applicant’s complaint in this ground is that, it being apparent from the delegate’s decision that the political situation in Sri Lanka was fluid, and having rejected the applicant’s own proffered country information at [4] of its reasons[3] the Authority should have acceded to the applicant’s request for the Authority to obtain more up-to-date information on the political situation in Sri Lanka.
[3] RD 214
The Authority dealt with that request at [7] of its reasons as follows:[4]
The submissions urge the IAA to get new information from the Department of Foreign Affairs (DFAT) related to the volatile situation in Sri Lanka at the present time. I have considered this request, but given my consideration of the country information in respect of the applicant’s claims that is set out below and taking into the IAA’s statutory objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3, I have decided to not to get or request any new information from DFAT or any other source.
[4] RD 215
The delegate’s decision was made on 20 November 2018. The delegate stated:[5]
I further acknowledge that the country is currently in a state of political uncertainty. On 26 October 2018 Sri Lanka’s President Maithripala Sirisena abruptly dismissed the prime minister, Ranil Wickremesinghe, appointed former President Mahinda Rajapaksa and suspended parliament. The dismissal was considered unconstitutional with two men claiming to be the country’s Prime Minister. More than 10,000 people including politicians and activists marched through the streets of Colombo to protest on 30 October and two people died in violence related to the political turmoil. The President subsequently dismissed the parliament and called a general election for 5 January 2019. Mr Rajapaksa along with 44 former lawmakers then announced their defection from Siresena’s party.
On 13 November [2018], the country’s Supreme Court suspended the president’s dissolution move allowing parliament to resume the following day. A majority voted in support of a no-confidence motion against the Prime Minister Mr Mahinda Rajapaksa and the Cabinet of Ministers and government appointed on or after 26 October 2018. It is now unclear, who, if anyone is currently Sri Lanka’s lawful prime minister. Parliament has again been suspended until Friday 23 November. (footnotes omitted)
[5] RD 163
The applicant’s adviser wrote a series of emails to the Authority. On 15 December 2018 he sent an email which attached country information concerning the constitutional crisis in Sri Lanka and the concern of Tamils about the re-emergence of Rajapaksa.[6] This information was dated prior to the delegate’s decision. The email then requested:[7]
The Authority is further urged to obtain/get information from DFAT sources relating to the volatile situation in Sri Lanka at the present time before it makes its decision.
[6] RD 193
[7] RD 194
The Authority made its decision on 14 January 2019. In its reasons it referred to the advisor’s request and stated at [7]:[8]
I have considered the request, but given my consideration of the country information in respect of the applicant’s claims that is set out below and taking into the IAA’s statutory objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3, I have decided not to get or request any new information from DFAT or any other source.
[8] RD 215
The Authority’s consideration of the exercise of its discretion to get new information under s.473DC of the Migration Act is conditioned by reasonableness.[9]
[9] DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [43]; [90]; Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600, at [21]
The applicant contends that the Authority has an obligation to have regard to the most up-to-date information before it.[10]
[10] Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24 at 44-45; Plaintiff S156/2013 v Minister for Immigration (2014) 254 CLR 28 at 46-47 [39]-[42] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ; Minister for Immigration v MZYTS (2013) 230 FCR 431 at 452-453 [73]-[77] per Kenny, Griffiths and Mortimer JJ; SZJTQ v Minister for Immigration (2008) 172 FCR 563 at 571-572 [27]-[32] per Rares J
The applicant submits that where the circumstances in the country of origin of an applicant are changing rapidly in ways which may affect the applicant’s claims it is “patently unreasonable” for the Authority not to obtain the latest assessment of the circumstances from DFAT before it makes its decision, particularly where the applicant has requested it to do so. There is said to be no reason why such an assessment could not be obtained expeditiously so as not to interfere with the Authority’s statutory objectives (noting the applicant’s request was made a month before the Authority made its decision).
I prefer the Minister’s submissions on this ground.
It is not controversial that “the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li”.[11] The relevant question is whether a particular exercise of power “lacks an evident and intelligible justification”.[12]
[11] Plaintiff M174 at [21]
[12] Minister for Immigration v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ); Minister for Immigration v SZVFW (2018) 357 ALR 408 at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ)
In Plaintiff M174, the High Court (per Gageler, Keane and Nettle JJ) at [22] further explained the operation of Division 3 of Part 7AA of the Migration Act, which governs the conduct of a review by the Authority, as follows:
Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. Close attention needs to be paid to each of those provisions and to their interrelationship.
The Authority has power, under s.473DC to “get any documents or information (new information)” that was not before the delegate when the delegate made the decision under review. However, that provision is “entirely facultative” and imposes no obligation to obtain new information.[13] Section 473DC(2) expressly provides as much.
[13] Plaintiff M174 at [23]
In view of these principles, I do not accept the contention that the Authority’s decision not to get new information as requested by the applicant lacked an evident and intelligible justification. As the applicant acknowledges, the Authority provided written reasons for declining to get new information “from DFAT or any other source”. Those reasons included the Authority’s consideration of country information[14] and its correct understanding of the statutory scheme governing a review under Division 3 of Part 7AA of the Migration Act. In short, the Authority’s reasons provided an evident and intelligible justification.
[14] See, in particular, the Authority’s analysis of country information at [29] of its reasons and the implications of that analysis in the following paragraphs that deal with the applicant’s claims
Contrary to the applicant’s submission, the fact that it might also have been reasonable for the Authority to get new information pursuant to its power under s.473DC(3) is not to the point. The applicant cannot succeed on this ground by showing that another option was reasonable. The Authority will only fall into jurisdictional error if the applicant shows that, in view of the Authority’s reasons and in the circumstances, its decision was not open to it because it lacked an evident and intelligible justification.
The applicant seeks to draw support from the decision of Rares J in SZJTQ, in particular at [27], [39]-[41]. Those observations, however, must be qualified by what appears at [42].
In my view, the Authority did not err. It was confronted, as was made clear in the delegate’s decision, with a somewhat fluid situation in the rather byzantine machinations of Sri Lankan politics at the time. While that political fluidity was causing some anxiety among Tamil observers, there was nothing to indicate that the uncertainty was likely to result in a deteriorating situation for the applicant. In my view, it was not unreasonable for the Authority to decline to exercise its power to obtain new information concerning the political situation in Sri Lanka at the time of its decision.
Ground 2 – did the Authority make a critical finding without probative evidence?
In his entry interview the applicant identified as a reason for leaving Sri Lanka that he had leased a motorbike for which he had not fully paid, it was registered in his name and had been confiscated by the Army. At his Safe Haven Enterprise Visa (SHEV) interview he explained that he leased several motorbikes on behalf of the LTTE.[15] The Authority accepted that the applicant purchased motorbikes in his own name on behalf of the LTTE and they would pay him in instalments for these purchases. The Authority accepted that after a while the LTTE stopped paying the applicant in instalments and that the applicant may still have debts owing as a result of these purchases. However the Authority reasoned that over a decade had passed since these events and, given this very long period of time, there was not a real chance of harm from sellers of the motorbikes.
[15] RD 157
The applicant complains that the premise of this factual finding is that the sellers of the motorbikes would have abandoned the debt as non recoverable, which is “pure speculation” by the Authority.
In Assistant Minister for Immigration v Splendido[16] Mortimer J explained at [107]-[108], with Moshinsky J agreeing at [113]:
It is also clear that in the absence of an express intention to the contrary (if one could constitutionally be given, which may be doubtful), an exercise of power which depends on the assessment and finding of facts for its exercise requires there to be probative material on which those findings can be made: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [124] (Crennan and Bell JJ); Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 367-368 (Deane J).
In Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; 296 ALR 307 Jessup J said at [62]:
Before turning to those issues, it is necessary to say something about the legal framework within which the tribunal’s fact-finding function was set. The tribunal is not a court, and is not bound by the rules of evidence: s 33(1)(c) of the AAT Act. It must, however, proceed by reference to “rationally probative evidence” rather than on mere “suspicion or speculation”: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685; 4 ALD 139 at 156; [1980] FCA 85; 1A IPR 708 at 724…
[16] [2019] FCAFC 132
The applicant’s fear of the persons to whom he owed money is said to have been central to his case. Accordingly the absence of probative evidence for the Authority’s finding that these persons would no longer be interested in the applicant is said to go to the Authority’s jurisdiction.[17]
[17] Hands v Minister for Immigration [2018] FCAFC 225 at [45]
Once again, I prefer the Minister’s submissions on this ground.
The applicant does not appear to frame Ground 2 as a “no evidence” ground per se. However, if framed as a “no evidence” ground, the applicant cannot succeed because the “‘no evidence’ ground ‘cuts out when even a skerrick of evidence appears’”.[18] As the applicant acknowledges in his submissions, there was an evidentiary basis for the Authority’s finding. The applicant’s complaint is that it was “pure speculation by the Authority.”
[18] see MZZYE v Minister for Immigration [2015] FCA 1378 at [54] per Murphy J referring to Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at 587; [2005] FCA 1707 at [575]
Based on the cases referred to in the applicant’s submission, his principal contention appears to be that the “premise of [the Authority’s] factual finding is that the sellers of the motorbikes would have abandoned the debt as non recoverable”, and such a finding was irrational or illogical in the sense articulated in Minister for Immigration v SZMDS[19] at 649 [135] per Crennan and Bell JJ. I do not accept this submission.
[19] [2010] HCA 16; (2010) 240 CLR 611
The Authority’s finding at [14][20] was not that “the debt [was] non recoverable”. The Authority’s actual finding was that “over a decade has passed since these events and given this very long period of time, I am not satisfied on the evidence before me, that there is a real chance that he would be subjected to any harm by these persons upon his return to Sri Lanka.” There is nothing irrational or illogical about this finding. It was a rational inference drawn from the evidence.
[20] RD 217
In Fattah v Minister for Home Affairs[21] at [45], the Full Federal Court recently restated the principles concerning illogicality in fact-finding as follows:
To discern illogicality (or irrationality) one must demonstrate that there is only one conclusion open on the evidence or that there is no logical connection between the evidence and the inferences drawn: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 649 at [135] per Crennan and Bell JJ; Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; 255 FCR 486 (‘Gupta’) at [34] per Gilmour and Mortimer JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ.
[21] [2019] FCAFC 31
In view of these principles, the applicant must persuade the Court that “there is no logical connection between the evidence and the inferences drawn” by the Authority from the passage of time combined with the other circumstances surrounding the applicant’s claim. The Authority’s finding at [14] is a rational inference drawn from the facts and circumstances of the applicant’s case. It may have been rational to draw other inferences, but that does not mean that the inference the Authority drew was illogical or irrational unless the applicant can show that some other inference was the only inference available.
The applicant’s argument on this point is not assisted by his submission that the inference here is “pure speculation”. In the context of assessing claims for protection, a decision-maker must “not foreclose reasonable speculation about the chances of the hypothetical future event occurring”.[22]
[22] Minister for Immigration v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [60]
There is no basis to suggest that the Authority made a finding of fact without probative evidence as alleged in Ground 2.
In his oral submissions, counsel for the applicant sought to draw support for this ground from the recent decision by Derrington J in EHF17 v Minister for Immigration [2019] FCA 1681 in particular at [84] and [97]. I do not read those observations by his Honour as establishing any new general principle, although they are a helpful consolidation of existing principles.
In the present case, the logically probative facts supporting the Authority’s conclusion at [14][23] were that the loan of concern to the applicant had been outstanding for 10 years and the applicant had not presented any evidence of any concerning recovery action taken over that time. In my view, those logically probative facts supported the Authority reaching a state of satisfaction that the existence of the debt would not expose the applicant to a real chance of harm upon return to Sri Lanka.
[23] RD 217
Conclusion
The applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 November 2019
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