AKL18 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 978

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AKL18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 978

File number:	MLG 221 of 2018
Judgment of:	JUDGE RILEY
Date of judgment:	18 October 2024
Catchwords:	MIGRATION – Immigration Assessment Authority – safe haven enterprise visa - whether the Authority failed to consider a claim – whether the Authority misinterpreted or misapplied the law – whether the Authority made findings without a logically probative basis or that were unreasonable.
Legislation:	Migration Act 1958 ss. 473DB, 499
Division:	Division 2 General Federal Law
Number of paragraphs:	61
Date of hearing:	11 September 2024
Place:	Melbourne
Counsel for the Applicant:	Anthony Krohn
Solicitor for the Applicant:	AUM Lawyers
Advocate for the First Respondent:	Jared Mintz
Counsel for the Second Respondent:	No appearance
Solicitor for the First and Second Respondents:	Clayton Utz

ORDERS

MLG 221 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AKL18
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	18 OCTOBER 2024

THE COURT ORDERS THAT:

1.The decision of the Immigration Assessment Authority made on 12 January 2018 in matter number IAA17/02378 be set aside.

2.The matter be remitted to the Administrative Review Tribunal for determination according to law.

3.The first respondent pay the applicant’s costs of the proceeding.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE RILEY:

INTRODUCTION

1. This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”).

   BACKGROUND

2. In his written submissions filed on 22 August 2024, the applicant provided the following background to this matter:

   A. Claims for protection

   6. The Applicant is a Tamil Hindu, unmarried and without children. (CB 3, 30, 32)

   Rejection by mother, and family difficulties

   7. He claimed that he had family difficulties. He remains estranged from his mother (who is hostile to him) and his other siblings. (CB 11, 54, 150)

   Family links to the LTTE

   8. The Applicant also feared the Sri Lankan authorities because of family links to the Liberation Tigers of Tamil Eelam (“LTTE”). There were three such links.

   9. First was his father. The Applicant was born in 1989, and a few months later, his father was shot and killed by the Sri Lankan Army. His father had been working as a mechanic for the LTTE. The Applicant’s mother rejected him, and he went to live with his grandmother. (CB 11; CB 54, [3]-[4]; CB 150, [3])

   10. Second was the Applicant’s cousin, a fighter and cadre in the LTTE who was killed in fighting. (CB 110; CB 160, [17])

   11. Third was his grandmother, with whom he lived from infancy. LTTE fighters stayed at her house in about 1996, stored weapons in the house, and buried weapons in the garden behind her house. (CB 161, [18]-[20])

   Fear of detention as illegal emigrant – fear of LTTE links becoming known

   12. The applicant left Sri Lanka illegally by boat. He feared detention as illegal emigrant if he were returned to Sri Lanka, and he would be left in prison as his mother would not come to help him be released. (CB 54-55, [6]-[8])

   13. The delegate noted a claim at the interview which was not in the written application for the visa, that:

   “The applicant claimed at interview that since he left the country his mother threatened to inform the authorities. He claims his uncle told him that their neighbours have been approached by the authorities and questioned about the applicant’s whereabouts.” (CB 110)

   14. He feared that the Sri Lankan authorities knew of his family links to the LTTE or that during detention as an illegal emigrant on return to Sri Lanka, his family links to the LTTE would become known. He feared “that I will be interrogated, tortured and disappeared or killed by the Sri Lankan authorities.” (CB 150 [6]-[8])

   THE AUTHORITY’S DECISION

3. In his submissions filed on 22 August 2024, the applicant provided the following summary of the Authority’s decision:

   15. The Authority accepted the majority of the applicant’s history as he gave it, and especially that his father, cousin and grandmother were linked to the LTTE as he had claimed. (CB 160-161, [14]-[21])

   16. It did not, however, accept that there was a real chance of the Applicant suffering relevant harm if he were to return to Sri Lanka, referring to the length of time since the family involvement with the LTTE (CB 160-161, [16]-[20]), and finding that it was “satisfied that the applicant is not, and is not suspected …. as being a person with former family links to the LTTE or a person with existing links to the LTTE.” (CB 162, [25]) It did not accept that he had a relevant risk of harm arising from that family background, or from political opinion or imputed political opinion arising from that background.

   17. The Authority did not accept that there was any real chance he would suffer any relevant harm from the estrangement in his family, noting his past ability to earn a living (CB 162-163 [26]-[28]), nor from his status as an illegal emigrant (CB 163-165 [29]-[38]), nor for any other reason. (CB 165, [39]-[40]; CB 166, [44]-[46])

   MATERIAL RELIED UPON

4. The applicant relied upon:

   (a)his application filed on 30 January 2018, amended on 22 August 2024 and further amended on 12 September 2024 (“the application”);

   (b)the court book filed on 28 November 2018;

   (c)the affidavit affirmed by Kathleen Clare Coffey on 22 August 2024, to which was exhibited:

   (i)the Department of Foreign Affairs and Trade’s Country Information Report Sri Lanka published on 24 January 2017; and

   (ii)the Department of Home Affairs’ Direction No. 56 dated 21 June 2013; and

   (d)his written submissions filed on 22 August 2024.

5. The Minister relied upon:

   (a)his response filed on 16 February 2018;

   (b)the court book filed on 28 November 2018; and

   (c)his written submissions filed on 5 September 2024.

   GROUND 1

6. The first ground of review in the application is:

   The Second Respondent (“the Authority”) fell into jurisdictional error by making a decision not taking into account relevant considerations including claims, integers of claims or material questions of fact or information.

7. This ground has six particulars.

   Particulars 1.a, b and c

8. The first three particulars to ground 1 are closely linked and are as follows:

   Whether the Sri Lankan authorities may come to know about the Applicant’s father and cousin.

   (a)The Authority found that “the applicant ... .is not suspected by the authorities as being a person with former family links to the LTTE” (CB 162, [25]), and therefore that the Sri Lankan authorities did not know of the involvement of the Applicant’s father and cousin and grandmother with the LTTE, but the Authority did not consider whether the Sri Lankan authorities may in the future come to know or suspect that involvement by the Applicant’s father or cousin or both of them and what may be the consequences of that for the Applicant.

   Whether the Sri Lankan authorities may come to know about the LTTE’s use of the Applicant’s grandmother’s house

   (b) Further to particular (a) to this Ground, the Authority “was prepared to accept that when the applicant was around seven years old (in 1996) LTTE fighters stayed at his grandmother’s house, used the house to store weapons and buried bags of guns in the ground at the back of the house” (CB 150, [ 4 ]; CB 161, [1 9]) The Authority found that the lack of action against “the applicant or any member of his family indicates that the authorities are not aware that the LTTE utilised the applicant’s grandmother’s house and grounds in this way and they do not suspect the applicant of having links with the LTTE.” (CB 161, [20]) In finding that this did not give rise to a real chance of the applicant suffering relevant harm (CB 161, [20]), the Authority did not make any finding about whether the Sri Lankan authorities may in the future come to know or suspect that involvement of the grandmother, and what may follow if in the reasonably foreseeable future they came to know of the use of the Applicant’s grandmother’s house by the LTTE.

   Whether the Sri Lankan authorities may come to know about the applicant’s family’s links to the LTTE

   (c)Further to particulars (a) and (b) to this Ground, the Authority did not consider with the engagement required by law, or at all, the Applicant’s articulated claim that:

   “I am fearful that during my detention, my family’s links to and support for the LTTE will be discovered by the authorities and I will also be suspected of being LTTE. I am fearful that I will be interrogated, tortured and disappeared or killed by the Sri Lankan authorities.’’

   (Applicant’s statement dated 19 May 2017, CB 150.)

9. Essentially, the first three particulars to ground 1 allege that the Authority failed to consider the applicant’s claim that, upon his return to Sri Lanka, he would be detained for having departed illegally, and during that detention, the authorities in Sri Lanka would discover his family connections to the LTTE and suspect him of being LTTE.

10. The Authority expressly accepted that the applicant’s family members did have connections to the LTTE as follows:

    (a)his father worked for the LTTE as a mechanic and may have been killed by the Sri Lankan Army in 1989;

    (b)the applicant’s cousin was a cadre in the LTTE and was killed in fighting; and

    (c)his grandmother, with whom the applicant lived, allowed LTTE fighters to stay in her house in 1996 and store weapons in her house, and they also buried weapons in her garden.

11. The Authority also expressly accepted that, upon return to Sri Lanka, the applicant would be arrested and held in remand while identity, character and security checks were being conducted.

12. The applicant expressly claimed in his statement made on 19 May 2017 that he feared that:

    during my detention, my family’s links to and support for the LTTE will be discovered by the authorities and I will also be suspected of being LTTE … [and] I will be interrogated, tortured and disappeared or killed by the Sri Lankan authorities.

13. The applicant submitted that the Authority did not consider this claim. The Minister submitted that the Authority did consider the claim.

14. More particularly, the Minister noted that the Authority said that:

    (a)at paragraph 16 of its reasons for decision:

    On the evidence I accept that the applicant's father assisted the LTTE in his capacity as a mechanic and that as a result he may have been killed by the Sri Lankan military. In assessing whether this gives rise to the applicant facing harm now and in the foreseeable future in Sri Lanka I note that the applicant's father's death occurred twenty-seven years ago during the war; the war finished in May 2009; and the LTTE no longer exists as a fighting force.3 I have also considered that the applicant does not claim to have faced any harm in the past from the Sri Lankan government or military arising from his father having provided this support to the LTTE. After assessing all the evidence I am satisfied that the applicant does not face a real chance of harm now and in the foreseeable future because his father provided support to the LTTE and was killed by the Sri Lankan military in 1990.

    (b)at paragraph 17 of its reasons for decision:

    At the SHEV interview held in December 2017 the applicant claimed that his maternal cousin was a fighter with the LTTE and was shot. He clarified that this occurred when the applicant was about six years old, therefore in or around 1995. I accept that this is a credible claim. In assessing whether this claim gives rise to the applicant facing harm now and in the foreseeable future in Sri Lanka I note that the applicant's maternal cousin's involvement with the LTTE and subsequent death occurred approximately twenty-two years ago. As stated above, the war between the LTTE and the Sri Lankan government ended in May 2009 when the Sri Lankan military decimated the LTTE as a fighting force. I note that both the previous Rajapaksa government and the current government of President Sirisena are focussed on ensuring there is no resurgence of the LTTE or of any Tamil separatist activity and as such the current government continues to monitor people suspected of, or known to have links to the LTTE. However the applicant does not claim that he, or his grandmother, or any member of his estranged family or extended family, are monitored by the Sri Lankan authorities or have been monitored in the past. The applicant does not claim that he or any family member has ever been detained, arrested, charged, or required to report to the Sri Lankan authorities because of suspected links with the LTTE. After assessing all the evidence I am satisfied that the applicant does not face a real chance of harm now and in the foreseeable future because a maternal cousin was an LTTE fighter and was shot and killed in 1995.

    (c)at paragraphs 18 and 19 of its reasons for decision:

    18.In the new information submitted to the IAA in May 2017 the applicant raised an additional claim regarding his family's links to the LTTE. He claims that when he was around seven years old and living with his grandmother LTTE fighters would come and stay at his grandmother's house. They also used his grandmother's house to store weapons. A number of times he saw the LTTE bring guns in large bags to the house and bury them in the ground at the back of the house.

    19. I have some concerns regarding the veracity of this claim given its late submission. However, I am prepared to accept that when the applicant was around seven years old (in 1996) LTTE fighters stayed at his grandmother's house, used the house to store weapons, and buried bags of guns in the ground at the back of the house. In assessing whether this claim gives rise to a real chance of harm to the applicant I again note the length of time that has passed since these events occurred (twenty-one years), the end of the war in May 2009 and the decimation of the LTTE as a fighting force. Furthermore I note that there is no evidence to indicate that the applicant, or his grandmother, or any other living family member has been detained, arrested, charged, required to report, or harmed in any way because the LTTE utilised the applicant's grandmother's house and grounds in this way or because the authorities suspected that the LTTE utilised the grandmother's house and grounds in this way.

15. The Minister argued that, by saying that the applicant did not face a real chance of harm in the foreseeable future by reason of the activities of his father, cousin or grandmother, the Authority had dealt with the claim that the applicant’s family connections to the LTTE could be discovered while he was in detention and he could face harm as a result. The Minister argued that the particular claim was dealt with by findings of greater generality.

16. However, the Authority did not at any point identify the claim that the applicant’s family links to the LTTE might be discovered while he was being detained and when identity, character and security checks would be made about him. The Authority noted the claim that the applicant would be detained, and the difficulties the applicant might have with his mother helping him to get out of prison, but did not note the specific claim about the applicant’s family links being discovered while the applicant was in detention. Reading the Authority’s reasons for decision fairly and as a whole, it seems to me that the Authority overlooked the claim that the applicant’s family links might be discovered while he was in detention.

17. I do not accept that that the Authority dealt with the claim with findings of greater generality. The findings that the applicant did not face harm in the foreseeable future were formulaic, and do not, on an ordinary reading, incorporate any consideration of the claim that the applicant’s family links might be discovered while he was in detention.

18. The fact that the Authority might have dealt with the claim relatively easily is to invite merits review, which this court is not empowered to provide.

19. These aspects of ground 1 are made out.

    Particular 1.d

20. Particular d to ground 1 is:

    The Authority did not consider the Applicant’s claim, made at his interview with an officer of the Minister’s department, “that since he left Sri Lanka his mother threatened to inform the authorities. His uncle told him that their neighbours have been approached by the authorities and questioned about the applicant’s whereabouts.” (CB 110)

21. The applicant’s own submission to the Authority, dated 19 May 2017, said at CB147 that:

    … his mother has threatened to inform the Sri Lankan authorities of his illegal departure and that the authorities have approached his neighbours and questioned him about his whereabouts.

22. That is, the threat from the mother was to inform the authorities that the applicant had left Sri Lanka illegally. The Authority accepted that the applicant had left Sri Lanka illegally and that the authorities would know that. Therefore, there was no need for the Authority to specifically consider the threat from the mother to tell the authorities that the applicant had left Sri Lanka illegally.

23. Similarly, the applicant’s claims about the authorities making enquiries of neighbours also seems to be directed to the question of whether the applicant had departed Sri Lanka illegally. As the Authority accepted that the applicant had departed Sri Lanka illegally, there was no need for the Authority to consider the claim about the neighbours any further.

24. This aspect of ground 1 is not made out.

    Particular 1.e

25. Particular e to ground 1 is:

    Information about abuse of human rights

    The Authority did not consider as required by law all the information relating to torture and other abuse of human rights including material cited in the decision by the Minister’s delegate (CB 111-114, 116-118), the submissions dated 19 May 2017 (CB 144-149), and all the material in the “DFAT Country Information Report-Sri Lanka”, dated 24 January 2017 (‘‘the 2017 DFAT report”), including paragraphs [4.12]-[4.22], (CB 162, [25]; CB 164, [35]-[39]; CB 166, [44)-[46])

26. The Authority dealt briefly with the possibility of the applicant being tortured upon return to Sri Lanka as follows:

    35.Given the circumstances of the applicant's illegal departure from Sri Lanka and the duration of his residence in Australia I accept that the Sri Lankan authorities may assume that the applicant sought protection in Australia. However the country information does not support a finding that failed Tamil asylum seekers are imputed with a pro-LTTE opinion, or are suspected to have been involved in supporting the LTTE or Tamil separatism merely because they are Tamils and have sought asylum. DFAT has reported that “There have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment...Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act.”

    (footnote omitted)

    36. I am satisfied that the applicant does not have the profile of an anti-government activist or a Tamil separatist. I have found that he is not perceived by the Sri Lankan authorities as a person who has links with the LTTE. He does not claim to be facing outstanding criminal charges or to have been involved in any aspect of people smuggling. As such, I am satisfied that the applicant will not be detained for a lengthy period of time or subjected to serious harm or significant harm on arriving back in Sri Lanka, or when he returns to his home area, as a person who departed illegally and is returning as a failed Sri Lankan / Tamil asylum seeker. I am satisfied that the applicant will undergo routine processing as outlined in the preceding paragraphs.

    …

    44.I have considered the applicant's claims individually and cumulatively. As outlined in the preceding pages I have found that the applicant does not face a real chance of serious harm in Sri Lanka in relation to his claims when considered individually and cumulatively.

    45. I note that the "real risk" test in the complementary protection provisions imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear". As I have found that the applicant does not face a real chance of serious harm in relation to his claims I find also that he does not face a real risk.

    (footnote omitted)

    46. I am satisfied that the applicant does not face a real risk of being arbitrarily deprived of his life; of the death penalty; of being subjected to torture or cruel or inhuman treatment or punishment; or degrading treatment or punishment for any of the claims raised by the applicant and assessed in the preceding pages. I am satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is not a real risk that he will suffer significant harm now or in the foreseeable future.

1. The applicant noted that the Authority’s brief references to torture in Sri Lanka were in marked distinction to the delegate’s extensive recounting of the material relating to torture. The applicant argued that the Authority did not sufficiently engage with the material relating to torture.

2. However, it is clear that the Authority relied on a recent report from the Department of Foreign Affairs and Trade that included information about torture. With this ground, the applicant appears to be doing no more than seeking impermissible merits review.

3. This aspect of ground 1 is not made out.

   Particular 1.f

4. Particular f to ground 1 is:

   Question about abuse of human rights

   Further or in the alternative to Particular (g) (sic) to this Ground, the Authority did not consider as required by law the question whether the Applicant may suffer serious or significant harm during possible detention or prison on return as an illegal emigrant, when this was a question articulated by the Applicant (CB 150, [8]), (CB 164, [35]-[39]; CB 166, [44]-[46])

5. Particular f seems to be intended to be an alternative to particular e.

6. In his oral submissions, the applicant argued that the Authority’s treatment of this issue was “disproportionately brief and incomplete”. However, again, this appears to be an attempt at merits review. In my view, the Authority’s consideration of this issue was sufficient.

7. This aspect of ground 1 is not made out.

   GROUND 2

8. The second ground of review in the application is:

   The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.

9. This ground has two particulars.

   Particular 2.a

10. Particular a to ground 2 is:

    Further or in the alternative to the Particulars to Ground l, in breach of section 473DB(l) of the Migration Act 1958 (“the Act”) the Authority did not review the decision referred to it by reference to the referred material.

11. Section 473DB(1) of the Migration Act 1958 (“the Act”) relevantly provided that:

    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

    (a)       without accepting or requesting new information; and

    (b)       without interviewing the referred applicant.

12. This aspect of ground 2 does not alter the position in relation to ground 1. I refer to and repeat the discussion in relation to that ground.

    Particular 2.b

13. Particular b to ground 2 is:

    Further or in the alternative to Particular (e) to Ground 1, the Authority did not have regard to the whole of the 2017 DFAT report, in breach of section 499(2A) of the Act and Direction 56 given by the Minister under section 499(1) of the Act.

14. Ministerial Direction no. 56 issued on 21 June 2013 is reproduced in exhibit KC-2 to the affidavit affirmed by Kathleen Clare Coffey on 22 August 2024. The Direction said:

    …

    Direction under section 499

    …

    Name of Direction

    This Direction is Direction no. 56 – Consideration of Protection Visa applications

    …

    Objectives

    The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 65, 414 or 415 of the Migration Act 1958 (the Act) when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa.

    It is undesirable for first instance and review decision makers to take inconsistent approaches to the decision making task where there is no rational basis for these inconsistencies. Accordingly, it is desirable that subject to the Migration Act and Regulations and other applicable laws, decision makers take as a starting point a common set of guidelines and country Information.

    Clauses

    1. This Direction applies to a decision-maker performing functions or exercising powers under section 65, 414 or 415 of the Migration Act 1958 (the Act) when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa. This direction is subject to the Migration Act and Regulations and other applicable laws.

    …

    3. Where the Department of Foreign Affairs and Trade has prepared a country Information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

15. Section 499 of the Act relevantly provided that:

    (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

    (a)       the performance of those functions; or

    (b)       the exercise of those powers.

    …

    (2A)     A person or body must comply with a direction under subsection (1).

    …

16. It was not disputed that Direction no. 56 was made under s.499 of the Act. However, the Minister submitted that the Authority did not have to comply with it, because the Authority did not make decisions under s.65, 414 or 415 of the Act. The Minister submitted that the Authority made decisions under s.473CC of the Act. That section provided that:

    (1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

    (2)       The Immigration Assessment Authority may:

    (a) affirm the fast track reviewable decision; or

    (b) remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

17. It was common ground that, when Direction no. 56 was issued on 21 June 2013, the Authority did not exist and s.473CC of the Act had not been enacted.

18. The Minister relied on a number of decisions of this court which concluded, with little discussion, that Direction no. 56 does not apply to the Authority. That might be technically correct.

19. However, the critical point is that, even if Direction no. 56 did apply to the Authority, it only requires the Authority to consider DFAT reports “where relevant”. The Authority did so. It expressly referred to torture in Sri Lanka and various other aspects of the 2017 DFAT report.

20. This aspect of ground 2 is not made out.

    GROUND 3

21. The third ground of review in the application is:

    The Authority fell into jurisdictional error in that it made findings without a logically probative basis or was otherwise legally unreasonable.

22. There were two particulars to this ground.

    Particular 3.a

23. Particular a to ground 3 is:

    The Authority was legally unreasonable to be “satisfied find that the applicant is not .... a person with former family links to the LTTE ...” (CB 162, [25])

24. This aspect of ground 3 concerned paragraph 25 of the Authority’s reasons for decision, which is as follows:

    … In particular I have considered whether the applicant, as a person with former family links with the LTTE, faces a real chance of harm in Sri Lanka. After assessing all the evidence I am satisfied that the applicant is not, and is not suspected by the authorities as being a person with former family links to the LTTE or a person with existing links to the LTTE. … (emphasis added)

25. The applicant argued that the Authority’s reasons for decision were unreasonable in that it said in that passage that the applicant “is not … a person with former family links to the LTTE”. That was said to be unreasonable because it was inconsistent with the Authority’s own findings.

26. The Minister submitted that it was not unreasonable; it was a typographical error.

27. I accept the Minister’s submissions on this point. It was obviously a typographical error. The Authority made repeated findings, including in the immediately preceding sentence, that the applicant had family links to the LTTE.

28. The passage quoted above is entirely reasonable with the words set out in bold being deleted. They were obviously included in error.

29. This aspect of ground 3 is not made out.

    Particular 3.b

30. Particular b to ground 3 is:

    The Authority referred to the Applicant’s aunt and her children, with whom the Applicant said in his application for the visa dated 27 July 2016 that he spoke about every two months. (CB 36, Q. 34) This was not a logically probative basis for the Authority to find that “if the applicant chooses to plead not guilty and is required to have a family member to act as guarantor there are family members on whom he could rely.” (CB 164, [33])

31. This aspect of ground 3 concerned paragraph 33 of the Authority’s reasons for decision, which is as follows:

    Generally, if a person pleads not guilty, they are granted bail on personal surety and may be required to have a family member act as guarantor and if so may have to wait until a family member comes to collect them. The law does not specify that a person's mother has to be the family member who acts as guarantor and comes to collect the person. I note that in his SHEV application the applicant indicates that he has an aunt and her children and he is in touch with them by phone about every two months. In these circumstances I am satisfied that if the applicant chooses to plead not guilty and is required to have a family member act as guarantor there are family members on whom he could rely.

32. The applicant argued that there was not a probative basis to conclude that he could rely on a family member to be a guarantor for him, in circumstances where the only possible family member was his aunt, with whom he spoke on the telephone about once every two months.

33. The threshold for illogicality and unreasonableness is very high. The circumstances of this case do not meet that test. It was not illogical for the Authority to conclude that the applicant could rely on his aunt to act as guarantor for him. This was an assessment of how a person would behave in certain circumstances. The Authority is empowered to make such assessments, within the bounds of reasonableness. In this case, the Authority did not exceed those bounds.

34. This aspect of ground 3 is not made out.  

    CONCLUSION

35. As one of the applicant’s grounds has been made out, the matter will be remitted to the Administrative Review Tribunal for determination according to law. The Minister will be required to pay the applicant’s costs of the proceeding. I will hear the parties on the quantum.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated:       18 October 2024