AJY17 v Minister for Immigration and Border Protection
[2020] FCA 327
•13 March 2020
FEDERAL COURT OF AUSTRALIA
AJY17 v Minister for Immigration and Border Protection [2020] FCA 327
Appeal from: AJY17 v Minister for Immigration & Anor [2019] FCCA 1057 File number: NSD 653 of 2019 Judge: CHARLESWORTH J Date of judgment: 13 March 2020 Catchwords: MIGRATION – appeal from an order dismissing an application for judicial review of a decision of the Immigration Assessment Authority – primary judge held it was open to the Authority to conclude that the appellant was not a person who would be imputed by the Sri Lankan authorities to have the political opinions of a member of the Liberation Tigers of Tamil Eelam – grounds of appeal ambiguous – no objection to court on appeal examining the reasoning of the primary judge for appealable error – primary judge proceeded on an incomplete summary of the appellant’s claims – decision of Authority affected by legal unreasonableness – Authority’s errors material to the outcome – appeal allowed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 65, 474, Pt 7AA
Migration Regulations 1994 (Cth)
Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Craig v South Australia (1995) 184 CLR 163
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151
Date of hearing: 19 August 2019 Date of last submissions: 26 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 59 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice
Table of Corrections 18 March 2020 Order 7 has been amended to read “ vary the order in paragraphs 5 or 6” ORDERS
NSD 653 of 2019 BETWEEN: AJY17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
13 MARCH 2020
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The orders of the primary judge made on 16 April 2019 in SYG 280/2017 are set aside.
3.A writ of certiorari issue, quashing the decision of the second respondent made on 13 January 2017.
4.The second respondent (differently constituted) is to review the decision of the first respondent in accordance with the law.
5.The first respondent is to pay the appellant’s costs of the appeal, as agreed or assessed.
6.The parties are to bear their own costs of the proceedings SYG 280/2017.
7.The parties have liberty to apply to vary the order in paragraphs 5 or 6, such liberty to be exercised on or before 20 March 2020.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
The appellant is a citizen of Sri Lanka. He is a Tamil from the Eastern Province of the country. Like many Tamils in the region, the appellant was caught up in the long civil war between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan government. He undertook paid work as a tailor during the civil war making uniforms for the LTTE at its behest. As a consequence, in December 2006 the appellant was assaulted, detained and tortured by the Special Task Force (STF). He was held for four days during which he was beaten and had a plastic bag tied over his head. The bag was fumigated with petrol, causing the appellant to faint. Upon his release he was told that he could be shot at any time.
Between January 2007 and August 2012 the appellant left Sri Lanka to reside in Saudi Arabia. He returned to Sri Lanka in 2009 and again in 2012, for a few months on each occasion before departing for Australia in August 2012.
The appellant arrived in Australia on 2 September 2012 as an “unauthorised maritime arrival” as that phrase is defined in the Migration Act 1958 (Cth). He subsequently made a valid application for a protection visa. In support of that application, the appellant claimed (among other things) to have a well-founded fear of persecution at the hands of the Sri Lankan authorities because he had the profile of an LTTE member or sympathiser. A delegate of the Minister for Immigration and Border Protection refused to grant the visa. That decision was referred by the Minister to the Immigration Assessment Authority for review under Pt 7AA of the Act.
The Authority accepted that the claimed events of 2006 had in fact occurred. It also accepted that the appellant subjectively feared that he would be persecuted by the Sri Lankan authorities should he be returned. The Authority nonetheless concluded that the appellant did not presently have the profile of a suspected member or sympathiser of the LTTE and so affirmed the delegate’s decision to refuse to grant the appellant the visa.
The appellant made an application for judicial review of the Authority’s decision to the Federal Circuit Court of Australia. He was self-represented on that application, as he is on this appeal. Relevantly, the primary judge found that it was open to the Authority to conclude that the appellant was not a person who was of interest to the Sri Lankan authorities.
I have concluded that the Authority’s decision is affected by errors that are properly to be characterised as jurisdictional. Accordingly, the appeal should be allowed and the delegate’s decision remitted to the Authority for review in accordance with these reasons.
THE ACT
Section 65(1)(a) of the Act relevantly provides that the Minister is to grant a visa if satisfied that (among other things) the criteria prescribed for the visa by the Act or the Migration Regulations 1994 (Cth) have been satisfied. If the Minister is not so satisfied, the Minister is to refuse to grant the visa: s 65(1)(b) of the Act.
For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion). Those alternate criteria are expressed as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
The word “refugee” in s 36(2)(a) is defined in s 5H of the Act, as follows:
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
….
The phrase “well-founded fear of persecution” is defined in s 5J:
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
…
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
THE AUTHORITY’S DECISION
The appellant set out his claims in a written statement dated 18 November 2015. The Authority summarised the claims in a series of dot points now extracted below. The added emphasis is mine:
•He is a Tamil Hindu born in [redacted], Eastern Province, Sri Lanka.
•In 2000 he was working in his tailor shop in [redacted] when the LTTE approached him to make uniforms. He felt compelled to accept their business and made uniforms for them a few times per year.
•In December 2006 he was assaulted, threatened at gun point to close down his business and arrested by seven Special Task Force (STF) officers because of his work for the LTTE. He recognised one of the STF members as a well-known officer infamous for his killing and cruelty. He was tortured, interrogated about sewing uniforms for the LTTE and being in the movement. He was detained for four days. Upon release he was told they knew he was an original LTTE member and they could shoot him anytime.
•He received medical treatment upon release and then hid at his sister’s house during the days and his brother’s house at nights. He never returned to his shop or to his own home. His wife told him the STF came to his house a few times looking for him so in January 2007 he fled to Saudi Arabia.
•From January 2007 – May 2009, and from September 2009 – April 2012 he lived in Saudi Arabia,
•His brother told him the police had asked about his whereabouts in early 2009 when he had seen them about an unrelated matter and that they had warned he would be shot upon return.
•When he returned to Sri Lanka in May 2009, he realised that even though the war had ended Sri Lanka was still unsafe for him. He returned to Saudi Arabia after just three months because he still intensely feared the STF.
•He returned to Sri Lanka the second time in April 2012. About one month later, in May 2012, the village head hand delivered him a letter at his home. The letter was from the [redacted] Police Station requiring him to report to their Crime Branch. He feared this was part of the Criminal Investigation Department (CID) who he knew were investigating suspected LTTE supporters and feared being detained and tortured again.
•He decided to leave Sri Lanka. For the next two months he hid at relatives’ houses in different villages.
•He fears being abducted, harmed, tortured and / or killed by the Sri Lankan authorities including the police, CID, STF and Karuna Group because they will accuse him of having LTTE links due to his work for them, his race and because he has sought asylum overseas. There is also a police warrant out against him.
That summary fails to record the appellant’s claim that the STF member who had threatened to shoot him “at any time” on his release in 2006 was the same member recognised by the appellant to be a “very cruel man” who had in fact killed people.
Later in its reasons the Authority recorded that the appellant had claimed that the police had attended upon his wife at his home in September 2012, that is, after he had left for Australia.
Importantly, the Authority expressly accepted (at [7]) the appellant’s claims “as they relate to the conflict period”. The “conflict period” must be understood as a reference to the period ending in May 2009 when the civil war ended.
The Authority also accepted (at [6]) that the appellant suffered memory and concentration problems which had developed following the harm he had experienced in 2006. The Authority’s acceptance of those parts of the appellant’s claims is unqualified. Pertinent to this appeal, the Authority did not reject the claim that upon releasing him in 2006, the STE member, said by the appellant to be infamous for his cruelty and killings, had told the appellant he knew he was an original LTTE member and that they could shoot him at any time.
The Authority accepted that the appellant’s involvement with the LTTE was limited to providing tailoring services between 2000 and 2006. It found that the appellant treated that work as a business transaction that he was compelled to engage in while continuing his normal tailoring business with his other clients. The Authority noted (correctly) that the appellant had not claimed that he or his family had not otherwise been involved with the LTTE in any way. The Authority described the appellant’s actual prior involvement with the LTTE as low level.
The Authority went on to say (at [8]):
I note the applicant’s release from detention came with a warning but I consider the fact that he was released indicates that the authorities were satisfied that they did not have any additional involvement with the LTTE, and in particular that he was not a fighter or member of the organisation. I accept the authorities visited his home after his release but on the evidence they did not enquire with his other family members in the area or take further action when they did not find him at home. I am not satisfied the home visit was any more than routine monitoring. I am not satisfied there was any particular ongoing suspicion or concerns about what the applicant’s involvement with the LTTE actually was. I consider that if there were, he would have been subject to more intensive and focussed investigation than his evidence suggests.
The Authority accepted that in 2009 the appellant went to Saudi Arabia in fear of the STF and that he returned after the civil war ended believing the situation to be safe. It also accepted that after hearing the warning that had been given to his brother earlier that year, the appellant was fearful and that he moved between his siblings’ homes rather than returning to his own home. The Authority nonetheless found that there was “no further follow-up to this comment from the policemen and the police did not show any other interest in [the appellant] in 2009, nor subsequently”. It must be inferred from that statement that the Authority accepted that the threat that the appellant would be shot had in fact been conveyed to his brother as he had claimed.
The Authority said (at [10]):
… While the applicant lived between his siblings’ homes, I am not satisfied on the evidence that he was sought by the police, nor any other authorities in this period. The applicant was able to re-enter Sri Lanka in June 2009 without incident and although he did not stay at home, he stayed with his siblings in the local area and then departed the country again a few months later, also without incident. While I accept the applicant held a genuine subjective fear of the local authorities, on the evidence I am not satisfied that he was targeted or sought by them, or was of adverse interest to them, nor any other authorities during this period.
As to the appellant’s claim that he had received a letter from the Criminal Investigation Department (CID), the Authority summarised the delegate’s questioning of the appellant on that topic. That questioning concerned the apparent lack of “follow up” after the appellant’s failure to report to the CID as the letter had required him to do.
The Authority accepted (at [14]) that in light of the country information before it, it was not implausible that the appellant would have been required to report to the police for an enquiry upon his return to Sri Lanka in 2012, given that “he had previously been of interests to the authorities” and that he was “part of a Tamil diaspora returning after several years abroad”. The Authority went on to say:
… However, the applicant’s evidence as to all the other circumstances surrounding this claim was vague and implausible. His evidence that he moved around with agents to evade authorities was vague and limited only to the fact that they moved around and were not in the area. Even taking into account the applicant’s problems with memory and concentration, I find it implausible that he would not be able to recall and provide the names of any of the agents he claims he moved around with evading the authorities for two to three months. I also find it implausible that the authorities would not have taken any follow-up action to locate the applicant and I do not accept his explanation that the police do not have authority to arrest someone on the street but can only arrest someone after they report for an enquiry. I also find this inconsistent with the text of the letter indicating an arrest warrant would be issued and he would be arrested on sight. I do not accept problems with the applicant’s concentration and memory explain or overcome my concerns. Given the letter does not support the applicant’s evidence about the process and authority for arrest, that no follow-up action was taken and the vagueness of the applicant’s evidence about how he evaded the authorities in the months after receiving the letter, I place no weight on the letter and I find the applicant’s claims regarding the letter and the fact that he was wanted by the police are not credible.
(frootnote omitted)
The Authority also rejected the appellant’s claim that the authorities had visited his wife in September 2012.
The Authority said (at [25]):
I am satisfied that the applicant was not of adverse interest to authorities on suspicion of LTTE involvement or for any other reason when he left Sri Lanka and has not subsequently become of interest. I am not satisfied that the applicant would be of adverse interest to the authorities or that he faces a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race, his origins from the East, his gender, his previous work for the LTTE nor for his cumulative profile on the basis of these factors. I am not satisfied that his profile is such that the applicant will be at risk upon return of being detained under the operation of the PTA, or that he otherwise has a well-founded fear of persecution on the basis of any imputed LTTE support or links.
The Authority concluded that the appellant did not meet the requirements of the definition of a refugee in s 5H(1) of the Act and so did not satisfy the Refugee Criterion. The Authority went on to conclude that the appellant did not satisfy the Complementary Protection Criterion including on the basis of its prior finding that he would not be regarded by the Sri Lankan authorities to be an LTTE member or sympathiser.
REASONS OF THE PRIMARY JUDGE
At first instance, the onus was on the appellant to show that the Authority’s decision was affected by jurisdictional error: s 474 of the Act; Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ).
Without alternation, his two grounds for judicial review were expressed as follows:
Ground-1
The IAA has declined its jurisdiction in reviewing my refugee claims that there is reliable and independent country information before it to evince that an ethnic Tamil in my similar back ground including I paid tailoring work for the LTTE during the war, was detained and was interrogated and was harmed is still at risk of serious harm on arrival and/or in any part of Sri Lanka. Although there is evidence before the IAA that I am at risk of serious harm the IAA failed to make correct finding and evaluation of my central claims. The IAA’s finding is inconsistent with the reliable and independent country information before it.
I will provide further grounds and evidence with particulars of the grounds when this court asks me to file my Amended Application.
Ground-2
[T]he Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me pursuant to section 36 (2) (aa).
Particulars
The Respondent has declined its jurisdiction as it has failed to consider/take into account the country information and facts before it as DIBP’s decision maker has accepted that I will be held on remand whilst the identity, character and security checks are completed. Based on the following country information reports before the decision maker there is a real chance that on my return to Sri Lanka when questioned by the authorities, as all returnees are, my profile and my suspected involvement with the LTTE will come to light and that I face a real chance of more than short term imprisonment and as a consequence mistreatment whilst imprisoned.
The independent and reliable country information before the decision maker is not indicating with confidence/certainty that a Tamil like me is safe and/or will not be seriously harmed in Sri Lanka.
The IAA has not considered at all the complementary protection available to me in Australia.
The primary judge proceeded on the basis that a summary of the appellant’s claims as set out in written submissions prepared by Counsel for the Minister was accurate. That summary was extracted in the reasons for judgment together with a significant portion of the Minister’s written submissions.
In rejecting ground 1, the primary judge concluded that the Authority’s findings were open to it on the evidence and material before it. Her Honour said:
24.It is clear from the summary above, the Authority’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Authority’s findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative basis or unreasonableness, and were not without unintelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 (‘ARG15’) at [83] per Griffiths, Perry, Bromwich JJ).
25.The Authority accepted the applicant’s LTTE involvement was limited to providing paid tailoring services between 2000 and 2006 and that he treated this as a business transaction and still continued his normal tailoring business with other clients. The Authority noted that the applicant did not claim that he or any other member of his family was involved with the LTTE in any way, and was satisfied that the applicant’s involvement was limited to business and was low level.
26.The Authority accepted that the applicant had been detained in 2006, and found that upon release he was given a warning. However, the fact of the applicant’s release indicated that the authorities were satisfied that he did not have any additional involvement with the LTTE.
27.The principal reason for the Authority’s affirming the decision under review was because it was not satisfied that the applicant had a profile in Sri Lanka that placed him at any risk if returned.
28.As stated above, those findings were open to the Authority for the reasons it gave.
29.Otherwise, Ground 1 appears to be no more than a disagreement with the findings and conclusions of the Authority. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 (‘Abebe’) at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
30.As submitted by the first respondent, disagreement, even emphatic disagreement with the Authority’s findings does not establish jurisdictional error (see Minister for Immigration and Citizenship v SZMDS (2011) 240 CLR 611 at [124] per Crennan and Bell JJ).
The conclusion that there was no reviewable error affecting the Authority’s conclusion that the appellant did not have the profile of an LTTE member or sympathiser formed an essential basis for her Honour’s rejection of the second ground for judicial review.
THE APPEAL
The notice of appeal is cast in broad and uninformative terms, reflecting the appellant’s status as a self-represented litigant.
Counsel for the Minister acknowledged that it was appropriate for this Court to proceed on the basis that the appellant intended to allege that the primary judge erred in dismissing the application for judicial review for the reasons her Honour gave. Written submissions for the Minister were prepared on that basis.
The primary judge (properly) interpreted the grounds for judicial review at first instance generously toward the appellant. The essence of the judgment at first instance was that there was no jurisdictional error affecting the Tribunal’s factual finding that the Sri Lankan authorities did not currently impute to the appellant the political opinions of an LTTE member or sympathiser. Her Honour concluded that the Tribunal’s findings on that topic were open to it, even though the grounds for judicial review had not expressly articulated a challenge to that finding in language articulating a recognisable ground for judicial review. There is no objection to this Court examining that conclusion for appealable error.
CONSIDERATION
The legal effect of her Honour’s conclusion was that the Authority’s underlying factual finding was not affected by legal unreasonableness in the sense explained by the Full Court of this Court in ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 and the cases cited therein. From that conclusion, the primary judge reasoned that the Tribunal had not committed jurisdictional error in applying the country information to the facts particular to the appellant, as the Authority had lawfully found them to be.
The primary judge proceeded on the basis that the appellant’s claims were as summarised in written submissions upon which the Minister had relied. That summary was incomplete in two respects that were critical to the outcome of the Authority’s review. The summary did not include any reference to the circumstance that the “warning” that had been issued to the appellant after his detention and torture in 2006 was in the nature of a threat that he could be shot at any time. Nor did the summary refer to the words the appellant claimed had been said by the authorities at the time of his release, namely that he was “known” to be “an original LTTE member”. It is significant that those words were claimed to have been said by the authorities themselves.
A proper analysis of whether the Authority committed jurisdictional error depended upon an accurate understanding of the claims the Authority had considered and rejected and its reasons for doing so.
The Authority correctly identified that the appellant had claimed that upon his release in 2006 he was told by officers of the STF that “they knew he was an original LTTE member and they could shoot him at any time”.
In the circumstances I have described, it is appropriate for this Court to consider for itself whether the Authority’s finding about the appellant’s profile was affected by jurisdictional error, having regard to the appellant’s claims as he had articulated them, and not as they were summarised by the Minister’s lawyer at first instance.
Principles
The Authority’s power to review the delegate’s decision was subject to the implied condition that the power be exercised reasonably. As Gageler J said in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (at [90]):
Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject matter, scope and purposes of the statute.
(original emphasis, footnotes omitted)
The concept of legal unreasonableness cannot be understood in isolation from the concept of jurisdictional error. As Allsop CJ explained in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (at [11]), “the boundaries of power may be difficult to define”. His Honour continued:
… The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident and intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
A factual finding cannot be said to be legally unreasonable if the subject matter of the finding is one in respect of which reasonable minds my differ. As explained in ARG15 (at [47]):
Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, ‘extreme’ illogicality or irrationality must be shown ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal’ (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).
A failure to comply with a condition attending the exercise of power will not ordinarily satisfy the threshold of materiality unless it can be shown that compliance with the condition could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31] (Kiefel CJ, Gageler and Keane JJ); Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 at [10] (Keifel CJ, Gageler and Keane JJ). As explained by the majority in Hossain, “jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error” (at [25]), and:
27Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.
…
29That a decision-maker ‘must proceed by reference to correct legal principles, correctly applied’ is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
(footnotes omitted)
As Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], “not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case”. The threshold of materiality would not ordinarily be met if an error could have made no difference to the decision-maker’s decision: Hossain at [29] – [30] (Kiefel CJ, Gageler and Keane JJ). And, as Wigney J said in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 (at [55]):
Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].
Errors
It formed a necessary part of the Authority’s task to form a state of satisfaction or non-satisfaction as the case may be as to whether the appellant fulfilled the visa criteria. That enquiry was highly fact sensitive. It turned upon an assessment of the country information before the Authority and the application of that information to the particular circumstances of the appellant’s case.
The Authority applied the country information to the facts as it had found them, in the following way:
20.I accept that the applicant and other Tamils in his area were harmed during the war and subsequently. In considering the risk of such harm to the applicant in the reasonably foreseeable future, I note that country information does not indicate that Tamils are currently at risk of persecution in Sri Lanka purely on account of their race, nor when they originate from an area that was previously controlled by the LTTE. Country information no longer supports a finding that Tamil ethnicity of itself imputes LTTE membership or a pro-LTTE opinion, even when combined with place of origin and this is evidenced in improvements in Sri Lanka’s security situation showing a decrease in militarisation and monitoring trends in the North and East. This·view is reinforced by other credible sources, including the United Kingdom Home Office. DFAT also reinforces this view and assesses that since the war’s end, incidences of extra-judicial killing, disappearances and kidnapping for ransom has fallen considerably and no particular group has recently been the target of kidnappings or extortion.
…
22.The UK Home Office has more recently identified that persons may be at risk if they are perceived to be a threat to the integrity of Sri Lanka due to a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka, are journalists or human rights activists critical of the government, are individuals who gave evidence to the ‘Lessons Learned and Reconciliation Commission’ implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes, and / or are persons whose name appears on a computerised ‘stop’ list accessible at the airport. I note the applicant departed Sri Lanka for Saudi Arabia in September 2009, a few months after the war ended and that he remained abroad for the next few years. However, he was able to depart and return to Sri Lanka on those occasions without incident, there is no evidence before me that anyone searched for him or made any enquiries about him during those years abroad and I have not accepted his claims of being of interest to authorities in the Crime Branch or otherwise upon his return in 2012, nor after his departure to Australia. Having regard to these factors, and the applicant’s time in Australia, on the evidence I am satisfied the applicant would not be perceived as having been engaged in Tamil separatism, or activities which would impute him as a threat to the state and on the evidence, nor does he fit within the other risk profiles identified by the UK. While the UK does indicate that government forces continue to detain suspected LTTE sympathisers I am not satisfied the applicant has such a profile.
(footnotes omitted)
Critical to that reasoning was the factual finding that the appellant was not a person who would be considered by the Sri Lankan authorities to be an LTTE member or sympathiser. I have concluded that two aspects of the Authority’s reasoning on that topic are affected by error.
As has been said, the Authority’s acceptance of the events the appellant claimed had occurred during the “conflict period” necessarily carried with it an acceptance of the claim that the STF had said to the appellant that they “knew” he was an “original LTTE member”. The words attributed to the STF are expressly included in the Authority’s summary of the claims it had accepted without qualification. Accepted as they were, they were plainly capable of indicating a belief on the part of the STF that the appellant had had a greater involvement with the LTTE than he actually had.
Consistent with the words attributed to the STF at that time, the appellant had claimed that during his torture over a period of four days, he had been accused of being an LTTE member and that his denials had been disbelieved by those who detained him.
The reasons of the Authority in relation to the appellant’s profile at that time make reference to the fact that his release “came with a warning”. Interpreting the reasons generously, the warning there referred to may be understood to mean the warning that the appellant could be shot at any time. However, there is no consideration given to the other words said to the appellant imputing to him membership of the LTTE at the time of his release, whether in that part of the Authority’s reasons or in any other part.
The Authority correctly concluded that the appellant had only low level involvement with the LTTE through this tailoring business. But that objective assessment does not provide an answer to the question of whether he was considered by the STF to have had greater involvement than he actually had. The opinion in fact expressed by the STF was plainly relevant to that enquiry. Having accepted that the words were said, it may have been open to the Authority to consider whether they ought to be regarded as a true statement of the views of the STF as at that time and to conclude that they were not. But no consideration is given to that question. There is nothing in the Authority’s reasons to disclose how it reconciled its conclusion that the appellant was not regarded by the STF as an LTTE member with its earlier acceptance that words to the opposite effect had been said by the STF itself. Rather than grapple with the significance of the STF’s express words, the Authority instead drew an inference that the STF could not have regarded the appellant as an LTTE member including because it would not otherwise have released him. That inference is not supported by evidence as to how the STF in fact treated persons it considered to be LTTE members during the conflict period over and above the infliction of torture and the issuing of threats of the kind the appellant had endured. Nothing is said of the accusations the STF had made in the course of torturing the appellant, nor is consideration given to the accepted fact that his denials of LTTE membership were disbelieved.
Similarly, the Authority accepted that a threat to shoot the appellant should he return to Sri Lanka was in fact conveyed to the appellant’s brother in 2009. The Authority did not consider the significance of that threat when asking itself whether the appellant had been imputed with the profile of an LTTE member at the earlier time. Nor did the Authority reconcile its finding that the 2009 threat to shoot the appellant had been made with its earlier finding that appellant was not in fact considered to be an LTTE sympathiser by the Sri Lankan authorities in 2006. The Authority did not suggest any factual circumstance that might motivate the Sri Lankan police to issue threats to shoot persons in 2009 who were not considered to have LTTE links. The Authority’s failure to ask itself whether the 2009 threat was related in any way to the accepted events of 2006 had the result that it impermissibly considered the component parts of the appellant’s claims as if the other component parts had not been made.
In my view there is error affecting the Authority’s reasoning process in the two respects I have identified. It matters not whether each error may be categorised as a lapse of logic or as a failure to logically reconcile countervailing facts, as the Authority found them to be. The reasoning is not in accordance with the condition that Authority’s state of non-satisfaction under s 65 of the Act be formed reasonably in the legal sense explained in the authorities to which I have referred. The standard of reasonableness conditioning the power is breached because the appellant was entitled to have the 2006 statement of the STF (as accepted) weighed in the balance. He was also entitled to have the accompanying 2006 threat (as found) and the 2009 threat (as found) considered together. To the extent that the Authority concluded that the 2006 STF statement was either insignificant or irrelevant, it has not expressed that conclusion, nor has it disclosed any rational basis for doing so.
It remains to assess the materiality of the errors against the principles I stated earlier.
Materiality of the errors
The Authority’s enquiry into whether the appellant was a person who was imputed with the political opinions of an LTTE member or sympathiser depended on multiple findings concerning events occurring over a six year period. Consideration of the words spoken by the STF in 2006 and the threat made in 2009 were but parts of that wider multifaceted enquiry. The Authority appears to have placed considerable weight on the circumstance that the appellant had not in fact been detained, tortured or shot after 2006. It formed the view that if the Sri Lankan authorities considered the appellant to be an LTTE member, it would have made more efforts to find and detain him than it had. Those were permissible considerations to take into account. The Authority was entitled to afford significant weight to the circumstance that the appellant had been able to depart from and return to Sri Lanka without being detected and detained.
Notwithstanding those considerations, I have concluded that the errors of the Authority deprived the appellant of the opportunity of a different outcome.
On the material before the Authority it was clearly open to the Authority to conclude that following his torture and release in 2006, the STF persisted in its belief that the appellant was an LTTE member. That finding would have been consistent with the accepted fact that the authorities attended on the appellant’s home before his departure in 2007. Had the Authority not erred in the respects I have identified, it may have weighed the countervailing factors differently and arrived at a conclusion more favourable to the appellant in relation to his imputed profile between 2006 and 2009. Had it done that, its assessment of the 2009 events would have proceeded from a different factual footing. The same may then be said of the findings the Authority made in relation to the events of 2012. That latter aspect of the Authority’s reasoning proceeds from the premise that the appellant was not of interest to the Sri Lankan authorities in 2009. The Authority found that the claim in relation to the letter he had received from the CID in 2012 requiring him to report to the police under threat of arrest should not be accepted, even though the delivery of the letter was consistent with the persecutory treatment of persons suspected of having LTTE links. The Authority’s conclusion that the letter should be given “little weight” is curious. Whether the Authority considered the letter to be a fabrication is left unsaid.
It may be that, if viewed in isolation, the findings in relation to that letter may well have been open to the Authority to make. However, it must also be observed that each step in the Authority’s reasoning on that topic was wholly unfavourable to the appellant in circumstances where a more favourable course of reasoning was plainly open. It cannot be said that the conclusions in relation to the 2012 events would necessarily remain the same if the errors in relation to the earlier periods had not been made. Expressed another way, whilst it might have remained open to the Authority to affirm the delegate’s decision had the errors not been made, it does not follow that it would necessarily have done so.
Nor can it be said that there is an independent basis (unaffected by error) upon which it could be said that the decision of the delegate must in any event have been affirmed: cf Hossain. In this case, the binary choice under s 65 of the Act turned entirely upon the Authority’s assessment of the appellant’s profile.
The errors are jurisdictional.
The orders of the primary judge should be set aside. In lieu thereof there should be an order in the nature of certiorari quashing the decision of the Authority and remitting the delegate’s decision to the Authority, differently constituted for review in accordance with the law.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 13 March 2020
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