AKZ18 v Minister for Home Affairs
[2024] FedCFamC2G 1284
•28 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AKZ18 v Minister for Home Affairs [2024] FedCFamC2G 1284
File number: MLG 473 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 28 November 2024 Catchwords: MIGRATION – Protection visa – Where the Authority did not make an error as to its treatment of “new information” under ss. 473DC and 473DD of the Migration Act 1958 – Where the Authority did not misinterpret the terms “real chance” and “real risk” as provided under the Act – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 5H, 5J, 36, 473CB, 473DC, 473DD, 473FA Cases cited: AFG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 585
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865
BTK19v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 658
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, [2019] HCA 34
BZD17 v Minister for Immigration (2018) 263 FCR 292
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
Craig v South Australia (1994) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DNQ18 v Minister for Immigration (2020) 275 FCR 517; [2020] FCAFC 72
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Minister for Home affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, [2013] FCAFC 3
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575
Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1
Plaintiff M1/2021 v Minister for Home Affairs (2022) ALJR 497; [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of last submissions: 20 November 2024 Date of hearing: 20 November 2024 Place: Melbourne Counsel for the Applicant: Mr Anthony Krohn Solicitor for the Applicant: Ravi James Lawyers Counsel for the First Respondent: Ms Kylie McInnes Solicitor for the First Respondent: Clayton Utz ORDERS
MLG 473 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AKZ18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
28 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
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 CHAMPION:
INTRODUCTION
The Applicant is a Sri Lankan citizen. He is of Tamil ethnicity and Hindu faith. His central claim was that he fears harm because his name was used in connection with two news articles published in 2012 in Vidivelli (an online Muslim newspaper in Sri Lanka) which articles were critical of the then Chief Minister of Eastern Province, Chief Minister Chandrakanathan, also known as Pilliyan.
The Applicant first arrived in Australia as an unauthorised maritime arrival in October 2012. In August 2016 he applied for a safe haven enterprise visa. The delegate refused the visa. The matter was referred to the Authority under Part 7AA of the Migration Act 1958 (Cth).
The Authority accepted that the Applicant worked as a journalist for Vidivelli up until May 2012. The Authority gave the Applicant the “benefit of the doubt” (Reasons, [12]) that in May 2012 an article in Vidivelli was published under his name and without his permission which was critical of Pilliyan and his supporters. He argued with his friend who was responsible for the publication after the article was published. He told his friend that he feared that the publication might bring him harm. The Authority also gave the Applicant the “benefit of the doubt” (Reasons, [11]) and accepted that he was abducted from his home by unknown men shortly after the publication of the May 2012 article, held for 2 days, mistreated during that time and then released. As to the mistreatment during his 2 day detention, the Applicant said he was “beaten and burned with lit cigarettes” (Reasons, [10]).
The Authority did not accept that in October 2012 a second Vidivelli article critical of Pilliyan was attributed to the Applicant without his permission.
As to those central claims, the Authority concluded at Reasons [26] that:
There is no evidence before me that the applicant was ever prevented from publishing any news articles during his career as a journalist. The article that was published over his by-line in May 2012 reported on the alleged illegal activities of Pilliyan at the time and there is no evidence that there have been any similar articles published over the applicant’s by-line since that time. The applicant has not worked as a journalist since mid-late 2012 and I am not satisfied that the applicant will have his freedom of expression restricted were he to return to Sri Lanka or that he faces a real chance of harm for this reason.
The Applicant made a separate and distinct claim that he feared harm from the local Muslim community because members of that community accused the Applicant’s father of starting a fire at their mosque. The Authority accepted that the Applicant’s father was arrested and charged with having lit the fire at the mosque (Reasons, [22]). Nonetheless, based on a combination of the “passage of time”, the Applicant father’s acquittal of the charge and the absence of further targeting of his father or his family over this issue the Authority was “not satisfied that the Applicant faced a real chance of serious harm from the local Muslim community were he to return to Sri Lanka” because of this issue.
The Authority did not accept a third claim that the Applicant faced a risk of serious harm as a Tamil from Batticaloa in the Eastern province of Sri Lanka or as a failed asylum seeker if he returned to Sri Lanka.
WHAT ARE THE ISSUES?
There are four grounds of review:
(1)Did the Authority make a jurisdictional error as to its treatment of “new information” under ss. 473DC and 473DD of the Act? (Ground 1)?
(2)Did the Authority misinterpret the terms “real chance” and “real risk” as set out in ss. 5H, 5J, 36(2)(a) and 36(2)(aa) of the Act (Ground 2)?
(3)Did the Authority fail to consider claims or integers of the Applicant’s claims (Ground 3)?
(4)Was the Authority’s decision legally unreasonable because of illogical reasoning (Ground 4)?
The Applicant has not proved any of Grounds 1-4. My reasons follow.
THE ISSUES
(1) DID THE AUTHORITY MAKE A JURISDICTIONAL ERROR AS TO NEW INFORMATION UNDER S. 473DC AND 473DD OF THE ACT? (GROUND 1)?
After the delegate’s decision refusing to grant the visa, the Applicant provided a submission to the Authority.
The Applicant attached to his submission various documents he identified as follows:
(a)a March 2006 publication extract from “Tamils of Sri Lanka – the quest for human dignity”;
(b)a statement by “Movement for Equal Rights”;
(c)an International Crisis Group report dated 16 May 2017;
(d)a newspaper article from the UN rapporteur;
(e)an article titled “UNHCR – Groundviews”; and
(f)an article titled “Looking at Systemic Torture in Sri Lanka”.
The Authority’s reasons expressly noted that “attached to the IAA submission were a number of country information documents addressing the situation in Sri Lanka” (Reasons, [3]). The referred applicant’s provision of that “new information” to the Authority meant that the Authority had to determine whether to consider that “new information” given the restrictions on considering new information set out in Part 7AA, notably in s. 473DD.
With the exception of one document (dated 28 September 2017) the Authority noted that “all of these reports pre-dated the delegate’s decision by a considerable period” (Reasons, [3]; my emphasis). As to those articles which predated the delegate’s decision, the Authority wrote that “the applicant has not satisfied me that this new information either could not have been provided to the delegate before the date of the delegate’s decision or that it is credible personal information…”. The Authority’s reasons disclose that the Authority assessed the information by reference to the criteria in s. 473DD(b)(i) and (ii) of the Act.
As to the article that post-dated the delegate’s decision the Authority said as follows at [4] of its Reasons:
4.The article dated 28 September 2017 could not have been provided to the delegate before she made her decision. The article is a report on the 36th session of the United Nations Human Rights Commission. The article is a general update on the work of the Commission in respect of Sri Lanka and on progress on the implementation of previous recommendations to the Commission. While recent, the article does not relate to the applicant's individual circumstances or address his claims in an obvious material way. The matters raised in the report have been covered by the country information that was before the delegate. Weighing everything before me, I am not satisfied that there are exceptional circumstances to justify considering this new information.
[Emphasis added]
Legal principles as to the Authority receiving and considering new information
Ground 1 is that the Authority made a jurisdictional error in not considering the various country information documents – the “new information” – the Applicant provided to the Authority under cover of his representative’s submission after the date of the delegate’s decision.
Ground 1 requires a consideration of the intersection of ss. 473DC and 473DD within Part 7AA as to “new information”.
As Perry J noted in BTK19v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 658 at [44] “the primary rule” or “default position” is that the Authority reviews a decision by considering review material provided to it without accepting or requesting “new information”. That is, it conducts its review on the papers.
Section 473DC is concerned with when the Authority can “get, in the sense of seek out” new information. In M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [24] the plurality said the section was entirely “facultative”. In M174/2016 at [28] the plurality noted that “section 473DD imposes restrictions on when the Authority can consider new information.”
The Authority made an evaluation of whether it ought to consider the “new information” under s. 473DD. At trial, the Applicant did not press any submission that there was an error with how the Authority applied s. 473DD. As a consequence, he accepts (at least implicitly) that the Authority correctly applied s. 473DD in making its evaluation that it would not consider the “new information” under s. 473DD.
The Applicant submits that the error was the Authority’s unreasonable exercise of what he submitted was a separate statutory discretion under s. 473DC for the Authority to “get” new information.
He submitted that the Authority’s statutory discretion under s. 473DC compelled it to consider the “new information” in the form of the 6 articles. Its failure to do so, bespoke error because that was a legally unreasonable result under s. 473DC even though the Authority had correctly evaluated the information under s. 473DD.
I do not accept the submission.
Section 473DD governs when the Authority will consider documents given to it by the referred applicant
In its relevant part, s. 473DD reads as follows:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
…
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
…
[Emphasis added]
The prefatory words of s. 473DD(b) disclose the focus of that subsection on information given to the Authority “by the referred applicant”. Particular requirements apply if the referred applicant is the source of the new information. In this case, because the referred Applicant was the source of the new information and because he does not challenge the Authority’s s. 473DD evaluation – he impliedly accepts that the prohibition in s. 473DD was engaged: “the… Authority must not consider any new information”.
Unless the Authority was satisfied that it ought to consider the new information provided to it by the referred Applicant under s. 473DD, s. 473DD operated positively to prohibit the Authority’s considering of the new information given to it by the referred applicant. On my interpretation of the statute, where the information given by the referred applicant did not meet the s. 473DD criteria, the Authority was prohibited from considering it. The Authority could not get and consider information of the type that the Applicant wished it to consider by an alternative means under s. 473DC because to do so it would breach the prohibition (“must not consider”) in s. 473DD.
In the circumstances of this case, there was no residual work for s. 473DC to do as to the 6 articles were given to the Authority by the referred applicant. The Authority dealt with the new information, as it had to do, under s. 473DD. If the articles could not pass through the filtering mechanism of s. 473DD, that was the end of the matter.
Alternatively, the Applicant has not proved any separate s. 473DC discretion miscarried
The reasons did not disclose whether the Authority considered exercising any discretion under s. 473DC to consider the “new information”. The exercise of discretion is a procedural matter. Reasons do not need to be given for the exercise or the non-exercise of a procedural power (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). The mere failure at the authority to mention the discretion not support the drawing an inference that the exercise of the discretion was not considered (BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, [2019] HCA 34, [40]).
In the absence of reasons, it is not possible to identify any error in the Authority’s reasoning process. I treat the Applicant’s submission as in effect a submission that the result that the Authority did not consider the articles itself bespeaks error in the exercise of a s. 473DC discretion. A reviewing court may find that a decision-maker exercised a discretion in a legally unreasonable way if the outcome itself bespeaks error by “observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied” (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, [83] (Nettle and Gordon JJ).
If I am wrong and there was a separate discretion to be exercised under s. 473DC, the result is not so unreasonable that it could not have been reached if proper reasoning had been applied.
The exercise of the discretion must take account of the statutory context. The Authority undertook its review under the fast track process in Part 7AA which has an objective of being “efficient [and] quick” under s. 473FA(1). Further, there is no duty to “get” new information under s. 473DC(2). The “default position” is that the Authority decides the review on material provided by the Secretary under s. 473CB (BTK19, [44], above). In addition, the reasonableness of the exercise of the discretion is to be assessed by what was known at the time the discretion was to be exercised (Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46, [26]).
The Authority expressly referred to several reasons for deciding not to consider the new information under s. 473DD. Each of those reasons means that the result is not so unreasonable that it could not have been reached if proper reasoning had been applied as to any separate discretion under s. 473DC. First, all but one of the articles could have been provided to the delegate because they predated her decision. Second, none of the articles concerned personal information of the Applicant. Third, as to the single article which post-dated the delegate’s decision the Authority was accurate to say it did “not relate to the applicant’s individual circumstances or address his claims in an obvious material way” (Reasons, [4]). Further, as the Authority observed, the matters raised in that report “have been covered by the country information that was before the delegate”.
Each of these matters weighs against a conclusion that any exercise of a discretion under s. 473DC(1) not to get and consider information was unreasonable in the legal sense.
Ground 1 has not been made out.
(2) DID THE AUTHORITY MISINTERPRET THE TERMS “REAL CHANCE” AND “REAL RISK” AS SET OUT IN SS. 5H, 5J, 36(2)(A) AND 36(2)(AA) OF THE ACT (GROUND 2)?
The misinterpretation of statutory terms may constitute a jurisdictional error (Craig v South Australia (1994) 184 CLR 163, 177; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, [3]).
Under Ground 2, the Applicant submits that the Authority misinterpreted the critical statutory terms of a “real chance” in s. 5J(1)(b) and a “real risk” in s. 36(2)(aa). The central tenet of the submission was that the Authority’s findings that the Applicant was a journalist who had already suffered harm in May 2012 necessitated a conclusion that there was a “real chance” of persecution if the Applicant returned to Sri Lanka. Further, the Authority’s acceptance of “some of the history of abuse of human rights in Sri Lanka” with reference to the DFAT Country Information Report – Sri Lanka also necessitated a conclusion that there was a “real chance” of persecution if the Applicant returned to Sri Lanka. The fact that the Authority reached a different conclusion, it is argued, means it must have misinterpreted the critical statutory terms of “real chance” and “real risk”.
What is the “real chance” test?
“A fear of persecution is ‘well-founded’ if there is a real chance that the refugee will be persecuted if he returns to his country of nationality” (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62, 389 (Mason CJ); 398 (Dawson J); 429 (McHugh J); my emphasis). A fear of persecution may be well-founded, even though there is less than a 50% chance of persecution occurring. A “real chance” nonetheless conveys the “notion of a substantial as distinct from a remote chance” (Chan, Mason CJ, 389) Under s. 36(2)(aa) (the complementary protection regime) Australia owed the Applicant protection obligations if there was a “real risk” that the Applicant would suffer significant harm if he returned to Sri Lanka. The “real chance” test and the “real risk” test impose the same standard.
The Authority correctly referred to the test that a “well-founded fear of persecution” involved a “real chance” of persecution (Reasons, [19]). It correctly noted that, under the Refugees Convention and the complementary protection regime respectively, “real chance” and “real risk” involved an application of the same standard (Reasons, [42]). It cited applicable authority for that proposition (Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, [2013] FCAFC 3, [246]).
It remains to consider whether even though the Authority correctly stated the test it then misapplied it.
Did the fact that the Applicant was journalist who had already suffered harm necessitate a conclusion that there was a “real chance” of persecution such that the Authority’s contrary conclusion discloses that the Authority incorrectly interpreted the “real chance” test? [particular (a)]
The Authority accepted that following the publication of an article attributed to him in May 2012 critical of Pilliyan, “unknown men” abducted him, detained him for 2 days and mistreated him. As a result, the Applicant submitted:
The Authority therefore had no basis to exclude a real chance of relevant harm to the Applicant as a journalist who had already suffered harm.
In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 a High Court majority said:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.
The Authority approached its decisional task in a conventional way by considering past events, the Applicant’s profile and relevant country information. I turn to the Authority’s reasons as to each of those matters in turn.
As to past events, it made a finding that there had been a serious event involving the Applicant in May 2012 connected with his status as a journalist.
The Authority also made findings as to the Applicant’s profile that (Reasons, [21]):
given the passage of time that has elapsed since the events of 2012 and the arrest and jailing of Pilliyan in 2016, I am not satisfied that the Pilliyan group would have retained interest in the applicant for more than five years since he departed Sri Lanka.
The Applicant did not challenge this finding.
The Authority brought its mind to bear on the country information as to journalists: (Reasons at [23]–[26]; DFAT Report at pars. [3.66]–[3.70]). It concluded at [25]–[26] of its Reasons that:
25. ….. DFAT was aware of a number of historical attacks against particular media outlets including attacks against individual journalists but stated that it was not aware of any recent reports of such attacks….
26 …. The applicant has not worked as a journalist since mid – late 2012 and I am not satisfied that the applicant will have his freedom of expression restricted were he to return to Sri Lanka or that he faces a real chance of harm for this reason.
The Authority had to evaluate whether the Applicant would face a “real chance” of persecution on the basis of the totality of the material before it. The past events of May 2012, although serious, formed only part of that material. The events of May 2012, taken together with the other material as to the Applicant’s profile and the country information, did not necessitate a conclusion that there was a “real chance” of persecution because the Applicant was a journalist who had suffered past harm.
Did the country information that a returning illegal emigrant may be detained or imprisoned necessitate a conclusion that there was a “real chance” of persecution such that the Authority’s contrary conclusion discloses that the Authority misinterpreted the “real chance” test? (particular (b))
The Applicant submitted that:
The Authority accepted some of the information about the history of abuse of human rights in Sri Lanka, including the DFAT Country Information Report — Sri Lanka", a report by the Australian Department of Foreign Affairs and Trade dated 24 January 2017(“the DFAT report”). It therefore had no basis to exclude a real chance of relevant harm to the Applicant as a returning illegal emigrant who may be detained or imprisoned for a short period on his return to Sri Lanka. (CB 312 [31]-[34]; CB 314, [43])
The Applicant also submitted at [33] of the Written Outline that:
The Authority did not consider with the engagement required by law with the risk of the Applicant suffering harm while in detention or prison.
The Authority referred to the relevant DFAT report as to Sri Lanka. The DFAT Report included a heading “Torture” and “Torture and Mistreatment of Returnees” (paras. [4.11]–[4.22]). At [4.22] the DFAT Report said:
Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased.
[Emphasis added]
The Authority set out in its Reasons at [31]:
31. DFAT reports that while thousands of asylum seekers have returned to Sri Lanka since 2009, there have been relatively few allegations of torture or mistreatment. DFAT assesses that the risk of mistreatment for the majority of returnees is low and continues to reduce including for those suspected of offences under the I&E Act. The information does not indicate that returning Tamil asylum seekers face a real chance of harm for that reason alone.
(Emphasis added)
The Authority was not required to engage with the country information line by line (see, i.e., Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1, [65] (McHugh J)).
The Authority’s reasons accurately report the content of the DFAT report. This is not a case in which the Authority’s findings on the country information reached beyond the material before it (Cf. DNQ18 v Minister for Immigration (2020) 275 FCR 517; [2020] FCAFC 72, [53]).
The “weight or persuasive quality” to be attributed to the country information was a matter for the decision-maker (Plaintiff M1/2021 v Minister for Home Affairs (2022) ALJR 497; [2022] HCA 17, [24]–[25]). Further, “mere disagreement with the Tribunal’s reading of country information does not amount to jurisdictional error” (AFG20 v Minister for Immigration, Citizenship, Migrant Services And Multicultural Affairs [2022] FCA 585, [59]).
The country information about a low and reducing risk of torture and mistreatment of returnees did not necessitate a conclusion that there was a real chance of persecution.
Ground 2 has not been made out.
(3) DID THE AUTHORITY FAIL TO CONSIDER RELEVANT CONSIDERATIONS (GROUND 3)?
By Ground 3 the Applicant seeks to impugn the Tribunal’s decision because it failed to consider relevant considerations in accordance with the principles discussed in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89. In AYY17, a Full Court said the review function “requires [the Tribunal] to consider all claims made by an applicant and its essential components or integers”. The Full Court also said at [18]:
The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials:
In Plaintiff M1/2021 at [24] a High Court plurality said that a decision-maker must read, identify, understand and evaluate each of the arguments and their component integers. The decision-maker must “bring their mind to bear upon the facts stated in them and the arguments or opinions put forward.”
Under Ground 3, the Applicant identifies 5 claims [particulars (a)–(e)] he says that he made and which he says the Authority did not consider in accordance with the prescripts of AYY17 and Plaintiff M1/2021.
(a) Did the Authority fail to consider that the Applicant was at risk because he was a journalist?
The Applicant submitted that the Authority made a jurisdictional error because it did not consider “whether the Applicant may wish to return to work as a journalist and consequently suffer harm as a journalist in the reasonably foreseeable future, either by being prevented, or deterred through fear from acting as a journalist…”
I referred to the Authority’s reasons as to whether there was a “real chance” of persecution because the Applicant was a journalist in my discussion of Ground 2.
The Authority brought its mind to bear on the Applicant’s work as a journalist under the heading “loss of freedom of expression” at [23]–[26] of its Reasons. I set out above (and do not repeat here at [25]–[26]) that the Authority concluded that there was not a real chance of persecution because the Applicant was a journalist because historical attacks on journalists were reducing. As the High Court said in Plaintiff M1/2021:
The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations
The Applicant had primarily advanced his claim on the basis not that he was a journalist per se but on the basis that he had suffered a personal attack because of a particular article critical of Pilliyan being attributed to him. Having regard to how his claims were framed, the Authority had the requisite level of engagement with the Applicant’s claim that he faced a real chance of persecution because he was a journalist.
(b) Did the Authority fail to consider the new country information?
The Applicant submits that the Authority was bound to consider the “new” country information given to the Authority by the referred applicant after the delegate’s decision. This is a reference to the 6 articles identified above. The Authority’s obligation as to that “new” information arose under s. 473DD. At a level of generality, a failure to consider all integers of the claim may constitute a failure to discharge the statutory function of review. In the particular circumstances of this case, the particular provisions of Part 7AA frame the Authority’s statutory function of review. Because it assessed the “new” information under s. 473DD it fulfilled its statutory function of review as to the “new” country information.
(c) & (d) Did the Authority fail to consider all relevant information in the DFAT Report?
I have also traversed how the Authority considered the country information in Ground 2 above.
The Authority had to consider the country information because it formed part of the “review material” under s. 473DB(1).
The Authority set out its findings on material questions as to the country information at para. [31] of its Reasons. That passage of its Reasons discloses that the Authority considered the country information. As a result, it follows that there was no jurisdictional error because of a failure to consider a claim as to the country information.
(e) Did the Authority fail to consider whether the Applicant may suffer harm as a returning illegal emigrant who may be held in detention or prison for a short period?
The Applicant also submits that the Authority failed to consider whether the Applicant may suffer harm as a returning illegal emigrant who may be held in detention or prison for a short period. At [30]–[34] of its Reasons, the Authority had the requisite level of engagement with this claim.
At [34] of its Reasons, the Authority expressly considered that there was a real chance that the Applicant would be detained at the airport for processing as a returning illegal emigrant. The Authority continued that “prison conditions in Sri Lanka are poor, due to a lack of resources, overcrowding and poor sanitary conditions.” The Authority concluded, however, that it was not satisfied that “the applicant’s questioning and detention in these circumstances would amount to serious harm for the purposes of s. 5J(4)(b) of the Act”.
At [43] of its Reasons, the Authority said that it was not satisfied that any detention would meet the definition of “significant harm” in s. 36(2A) of the Act.
The Authority grappled directly with these issues in the sense that the decision maker brought his mind to bear upon them. It did not fail to consider this integer of the Applicant’s claim as to whether there would be a real chance of serious harm consequent on his detention on his return to Sri Lanka.
(4) WAS THE AUTHORITY’S DECISION LEGALLY UNREASONABLE (GROUND 4)?
Legal principles
Unreasonableness may arise in respect of irrational findings or reasoning along the way to a conclusion (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, [132]; followed in BZD17 v Minister for Immigration (2018) 263 FCR 292, [34]).
The Full Court’s statement of principle in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [34] is pertinent to the Applicant’s submissions. In Djokovic, the Full Court said that the conclusion of legal unreasonableness is about the characterisation of the approach of the decision-maker and the reasoning process. It concerns:
the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question….
[Emphasis added]
In BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 Mortimer CJ at [41] referred to legal unreasonableness as an “umbrella concept” with “irrational reasoning going to the material parts of the way in which a conclusion was reached and therefore a power is exercised, being described as one manifestation of legal unreasonableness”. Her Honour said that there must be a “logical connection” between the material that was before the decision-maker and the conclusions drawn but “the strength of the logical connection is not material; as long as there was some logical connection, then that is all that was required” (BQG21, [30]).
Was the Authority’s refusal to accept the Applicant’s claim that he did not publish the October 2012 article unreasonable in the legal sense [particulars (a) –(d)]?
The Authority accepted that in May 2012 the Applicant’s friend used his byline without his permission to publish an article in Vidivelli about the “violent, corrupt and illegal activities” of Pilliyan and his supporters. The Authority deployed circumspect language in accepting the Applicant’s account. Although the Authority was “concerned that the applicant has not provided a hard copy of the article” it was “willing to give the Applicant the benefit of the doubt and accept that the article was published as claimed and that he had argued with his friend after the publication” (Reasons, [8]).
Noting that the Authority accepted the Applicant’s account of the publication of the May 2012 article in Vidivelli the Applicant submits that:
The Second Respondent was then legally unreasonable when, without any evidence and by supposition, it refused to accept the applicant’s claim that the second article was also written in the Applicant’s name by his friend that although the applicant had made his unhappiness very clear to his friend on the first occasion. As the Authority had accepted that the Applicant’s by-line was used by another person in May 2012, and therefore using it again in October 2012 was plausible. (CB 308, [13]-[15])
In effect, the Applicant submits that because the Authority accepted the Applicant’s account as to the May 2012 first article it was unreasonable in legal sense for the Authority to reach a different (and contrary) conclusion as to the October 2012 second article.
The Authority’s finding as to the October 2012 article at [14] was as follows:
While I have given the applicant the benefit of the doubt that his by-line was used without his permission in May, given that the applicant had made it very clear to his friend that he was unhappy at having his had his by-line used at the time and that he was no longer working for Vidivelli in October, I find it implausible that Vidivelli would use his by-line again in a second article and I do not accept this claim.
I do not accept the Applicant’s submission that the Authority’s reasoning process as to the second article is to be characterised as “so lacking a rational or logical foundation” that the decision was one that no rational or logical decision-maker could reach (Djokovic, above). There was a rational or logical foundation to the Authority’s findings. In not accepting the claim about the second article in October 2012 it was reasonable for the Authority to make the finding (as it did) (Reasons, [14]) because:
(a)the Applicant had told his friend in May 2012 that he was unhappy at having had his byline used;
(b)he was no longer working for Vidivelli in October 2012; and
(c)he had not provided a copy of the second article.
These reasons were logical reasons for the Authority not to accept the Applicant’s claim that the second article had been published in October 2012 without his permission. Having regard to the stringent standard of legal unreasonableness, the finding the Tribunal made was reasonably open to it.
Was there a logical basis for the Authority not to accept the Applicant’s claim that he stayed with his uncle out of fear [particulars (e)]?
The Authority accepted that the Applicant was abducted on 23 May 2022 and released after 2 days in detention with a warning not to publish critical articles again (Reasons, [13]). The Applicant then travelled to Thailand for about two weeks. The Applicant claimed that on his return from Thailand on 8 June 2022 that:
he stayed with his uncle for three – four months prior to travelling to Australia. He stayed with his uncle instead of returning home out of fear that he would be located by supporters of Pilliyan.
The Authority did not accept his claim that he stayed with his uncle out of fear (Reasons, [13]). The Authority based its conclusion on the basis that there was no evidence “to indicate that the supporters of Pilliyan had any further interest in him” after his release after 2 days in detention.
I do not accept the Applicant’s contention that the rejection of his claim that he stayed with his uncle out of fear is to be characterised as unreasonable in the legal sense. There was a “logical connection” in the sense Mortimer CJ described in BQG21 between the Authority’s finding that the Applicant had been released and the absence of any evidence that supporters of Pilliyan had an ongoing interest in him (on the one hand) and the finding that the Authority did not accept that he had stayed with his uncle out of fear (on the other).
Was there a logical basis for the Authority not to accept the Applicant’s claim that his brother was living away from home out of fear [particulars (f)]?
The Authority accepted that the Applicant’s father had been accused of setting fire to a mosque (Reasons, [16]). The Authority said as follows as to his brother’s circumstances (Reasons, [17]):
The applicant was asked by the delegate to explain his brother’s situation and he simply stated that his brother cannot live at home any longer and that he is, as a consequence of his fear, living in a student hostel. I accept that his brother is a university student who lives in a hostel, I am not satisfied that his brother’s current living situation is related to the applicant’s circumstances or the events related to the fire at the mosque.
The Applicant submitted that there was no logically probative basis for the Authority not to accept the Applicant’s claim that his brother was living away from home out of fear. I do not accept the submission. It was for the Applicant to “provide sufficient evidence to establish the claim” under s. 5AAA. I accept the Minister’s submission: namely, that the Applicant did not “provide sufficient information to induce the necessary state of satisfaction” for the Authority to make a positive finding as to the reasons the brother was living in a hostel: whether it was because of fear or because of his studies.
Was there a logical basis for the Authority not to find that there was a real chance that the Applicant may suffer harm as a journalist [particular (f)]?
I have identified the Authority’s reasons in not accepting the Applicant’s claim that there was a real chance of serious harm because he was a journalist in Ground 2 above. I note, without repeating the reasons in full, that the Authority concluded that although there had been historical attacks against journalists DFAT “was not aware of any recent reports of such attacks”, which in turn underpinned a conclusion that there was not a real chance that the Applicant may suffer harm because he was a journalist. That finding did not lack a rational or logical foundation. The foundation for the finding was in para. [3.68] of the DFAT country information which was as follows:
According to the Committee to Protect Journalists, there have been no journalists known to have been killed in Sri Lanka since the end of the conflict in 2009. However, DFAT is aware of a number of historical attacks against particular media outlets, including police raids against the offices of media organisations, attacks against individual journalists and editors and arson and other attacks against media organisations. DFAT is not aware of any recent reports of this kind of violence.
[Emphasis added]
Ground 4 has not been made out.
CONCLUSION
I will dismiss the application. I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
I certify that the preceding eighty-six (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 28 November 2024
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