Anm17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1833
•10 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ANM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1833
File number(s): MLG 266 of 2017 Judgment of: JUDGE EGAN Date of judgment: 10 August 2021 Catchwords: MIGRATION – Whether Authority erred in failing to consider information as new information justifying consideration – adverse credibility findings made by Authority – no failure by Authority to appropriately consider all aspects of the claims made by the Applicant – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5(1), 5H(1), 5J, 473CB, 473DD(b), 473DD(b)(ii).
Privacy Act 1988 (Cth) s 6(1).Cases cited: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217.
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159.
AUS17 v Minister for Immigration and Border Protection & Anor (2020) 384 ALR 196.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.Number of paragraphs: 31 Date of last submission/s: 3 August 2021 Date of hearing: 30 July 2021 Place: Brisbane Solicitor for the Applicant: Mr S. Bandara of PLS Lawyers Counsel for the First Respondent: Mr N. Dour Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance save as to costs ORDERS
MLG 266 of 2017 BETWEEN: ANM17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
10 AUGUST 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Amended Application for Review filed on 2 July 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7, 467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant is a citizen of Sri Lanka who arrived in Australia on 17 November 2012 as an unauthorised maritime arrival.
On 1 March 2016, the applicant applied for a Safe Haven Enterprise Visa (‘SHEV’).
On 6 December 2016, a delegate of the first respondent refused to grant the visa. The applicant applied to the Immigration Assessment Authority (‘the Authority’) for review of the decision of the delegate under Part 7AA of the Migration Act 1958 (Cth) (‘the Act’).
On 15 January 2017, the applicant emailed written submissions to the Authority. Such submissions included references to some sourced country information, as well as a letter from one Dr Al-Haj.I.S.Hameed which purported to give some family history concerning the applicant in Sri Lanka.
On 31 January 2017, the Authority affirmed the decision of the delegate.
The Applicant’s Claims
At [2] of its reasons, the Authority recorded that it had had regard to the material referred to it by the Secretary pursuant to the provisions of s. 473CB of the Act.
At [19] – [20] of its reasons, the Authority correctly recorded the matters which had to be satisfied for a person to be considered a refugee under s. 5H(1) of the Act, as well as what constituted a well-founded fear of persecution under s. 5J of the Act.
At [7] of its reasons, the Authority recorded that it had obtained new information, namely information relating to the treatment of Sri Lankans of Tamil ethnicity, as well as information concerning Sri Lankan citizens who had departed Sri Lanka illegally for the purpose of seeking asylum abroad. Such information was said to be the then most recent DFAT country information for Sri Lanka, its having been published on 24 January 2017. The Authority noted that the delegate had relied on a DFAT report concerning Sri Lanka dated 18 December 2015. The Authority recorded that it was satisfied that there were exceptional circumstances justifying its consideration of such new information.
At [8] of its reasons, the Authority set out the applicant’s claims as follows:
· “In 1990 the applicant’s eldest brother, (‘Brother NS’), who was with the Liberation Tigers of Tamil Eelam (LTTE), was killed by a Sri Lankan Army (SLA) bomb. Brother NS was fifteen years old when he died.
· In February 2010 the SLA and Criminal Investigation Department (CID) forcefully arrested the applicant at his house in [town omitted] and took him to the Thanthirimalai Army Camp.
· The SLA and CID interrogated the applicant about his LTTE involvement and about his brother. They also burnt him with an ‘iron box’ and beat his limbs with a bar.
· The applicant was released on the condition he report to the camp each month.
· The SLA and CID have harassed the applicant over the years due to his brother’s association with the LTTE.
· Since the applicant departed Sri Lanka in August 2012 the CID have asked his mother when he will be back. His mother told the CID the applicant has left Sri Lanka.
· The applicant fears he will be detained, interrogated tortured and/or killed by the Sri Lankan authorities because:
· He is a Tamil male from the Northern Province.
· He will be imputed to be an LTTE sympathiser because Brother NS was in the LTTE.
· He departed Sri Lanka in 2012 and stopped reporting to them.”
[Names of towns omitted]
Grounds of Amended Application
At the hearing before the Court, the applicant relied upon the grounds of review contained in an Amended Application for Review filed on 2 July 2021. The grounds of review were as follows:
“1. The Immigration Assessment Authority erred in law and/or in fact, and thereby fell into jurisdictional error, when it did not consider the relevant new information presented by the applicant through his submissions on [16] 15 January 2017 as required by sec. 473DD of the migration Act.
Particulars
The applicant was able to provide new information as defined in sec. 473DC (1) of the act, but the Immigration Assessment Authority did not consider the new information on the basis that sec. 473DD was not met and the new repot does not disadvantage the applicant. The applicant’s information carried a weight and should have been considered notwithstanding the timing of the evidence and had it been considered, it may have affected the consideration of the applicant’s claim.
2. The Immigration Assessment Authority erred in law and/or in fact, and thereby fell into jurisdictional error, when it did not take into account the applicant’s real or perceived links to the LTTE, specifically failing to consider the applicant’s claim of continuous harassment by the Sri Lankan authorities.”
Ground 1 is a claim that the Authority did not consider the new information which had been submitted. It was submitted that the Authority ought to have considered such information as new information under the provisions of s. 473DD of the Act. Section 473DD provided 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:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(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:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”
At [4] – [6] of its reasons, the Authority considered the information which had been referred to by the applicant in his submissions. The Authority found as follows:
“[4] The IAA submission lists five pieces of country information, two of which were before the delegate and were expressly considered in the delegate’s decision - an International Truth & Justice Project Sri Lanka report from January 2016 and a UK Home Office report from May 2016. As such, these two do not constitute new information as defined in s.473DC(1) and I have had regard to them.
[5] The other three pieces of country information were not before the delegate and are ‘new information’. I note they predate the delegate’s decision. No explanation has been included as to why this country information could not been provided to the Minister before the delegate’s decision, or why they may be considered credible personal information. While the applicant was unrepresented at his SHEV interview, he received assistance to prepare his SHEV application. I note the delegate put similar country information to the applicant for comment during the SHEV interview, held on 8 August 2016, regarding the current situation for Tamils and returnees to Sri Lanka. At the end of the interview, the delegate advised he would take into consideration any further information the applicant wished to provide, if received prior to making his decision. During the four month period between the interview and the refusal of the SHEV application on 6 December 2016, the delegate did not receive any further information from the applicant. I am satisfied the applicant was given the opportunity to address the issues raised in the country information he has now submitted to the IAA, and I am satisfied not considering these new reports does not disadvantage the applicant in any way. I am not satisfied s.473DD(b) is met in relation to these pieces of country information. Nor am I satisfied there are exceptional circumstances to justify considering the material.
[6] Attached to the IAA submission is a one page letter of support from a Dr Al Haj I.S. Hameed, Justice of the Peace in [town omitted], dated 21 December 2016, who claims to know the applicant personally. The letter reiterates details of the applicant’s family composition, his brother’s death in 1990 and outlines his claims for protection. As the document post-dates the delegate’s decision, I am satisfied that it was not, and could not have been, provided to the Minister before the delegate made the decision. I am not however satisfied that there are exceptional circumstances to justify its consideration. As noted previously, four months elapsed between the applicant’s SHEV interview and the delegate’s decision to refuse his SHEV application. I am satisfied the applicant had sufficient opportunity to seek further supporting documentation, such as this letter, before the delegate made the decision. I am not satisfied there are exceptional circumstances to justify considering the material.”
[Names of towns omitted]
First, the Authority noted that two (2) of the five (5) references to country information referred to by the applicant had already been considered by the delegate. The Authority further noted that the other three (3) references to country information related to information which pre-dated the delegate’s decision, the Authority recording that no explanation had been given as to why such country information could not have been provided to the Minister before the delegate’s decision, or why such information might be considered credible personal information. As to the latter, when considering s. 473DD(b)(ii) of the Act, it was said in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [29] per Gageler, Keane, Nettle, Gordon and Edelman JJ as follows:
“[29] The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are "exceptional circumstances" to justify considering it. “
In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [38] –[42] inclusive, Bromberg J said as follows:
“[38] Despite accepting the erroneous approach taken by the primary judge, the Minister nevertheless contended that the Authority had not relevantly engaged in jurisdictional error. The Minister contended that pursuant to s 473DD(b)(ii) the Authority must form an assessment of whether the “new information” is “credible” before it is permitted to then consider that information for the purposes of making its ultimate decision on the review. In making that assessment, the Minister contended that the Authority was entitled to take into account the “review material”. That was what the Authority did here and, by reference to the fact that a claim of the kind raised by the “new information” had never previously been advanced by the appellant, the Authority was entitled to conclude that the “new information” was not “credible personal information” within the meaning of the s 473DD(b)(ii) criteria.
[39]To address the competing contentions, it is necessary to properly understand the basis for the Authority’s conclusion that the new information was not “credible personal information”. It was not in contest that the Authority was engaged in a process of assessing the veracity of the “new information”, not on its face, but by reference to “review material” which had been received by the Authority. By that process, the Authority came to an ultimate or final view that the “new information” was not to be believed and therefore not information that could be received for consideration in accordance with s 473DD(b)(ii). The nature of the assessment made by the Authority indicates that the Authority proceeded on the basis that a condition of engagement of s 473DD(b)(ii) is the Authority’s satisfaction that the “new information” is true. That reflects the sense in which the Authority construed the word “credible”.
[40] An alternative construction for the use of the word “credible” in the phrase “credible personal information”, is that it has a meaning consistent with the meaning given to the word in a setting somewhat akin to that found in s 473DD(b)(ii), that is, in the expression of one aspect of the natural justice hearing rule. I addressed the meaning of “credible” when used in that context in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288 at [79], where I said this:
The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD at [56]. That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629 as “credible, relevant and significant”. “Credible, relevant and significant”, is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is “evidently not credible, not relevant, or of little or no significance to the decision that is to be made”: VEAL at [17] and see at [20].
[41] In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
[42] The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.”
CSR16 has been followed in a number of Full Court decisions, including Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 where, at [72] – [78] inclusive, the Court (Besanko, Mortimer and Jackson JJ) said as follows:
“[72] Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant – in all these circumstances the Authority is entitled to reflect on and assess the review material already before it – but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions – in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
[73] However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own – fresh – consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
[74] As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.
[75] That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.
[76] Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
[77] Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
[78] Specifically, as to the Minister’s submissions:
(a) It is not to the point that the word “credible” is not qualified. What matters is, as we have explained, the meaning of the word Parliament has chosen to use, which is “credible”. As Bromberg J identified, its meaning is not the same as “true”.
(b) The approach in CSR16 does not require any additional or different text to be implied into s 473DD(b)(ii). It simply requires assigning the appropriate meaning, in context, to the word “credible”.
(c) There is no inconsistency between the approach in CSR16 and the proposition that the Authority may examine other review material as part of its exercise of power under any of ss 473DC; 473DD or 473DE. However, the Authority must not in substance embark on the conduct of its review – making a fresh decision – by using material to determine a visa applicant’s credibility that it then decides to exclude from the review. The scheme does not intend that this can occur. That would be a substantively unfair process, and there would need to be clear words to give this part of the scheme such an operation.
(d) The purpose of s 473DD is not undermined at all by construing s 473DD(b)(ii) in the way we have explained. This argument ignores any holistic consideration of s 473DD, which erects a considerable threshold to the receipt of new information. Further, the purpose of the scheme of Pt 7AA would be undermined by an approach that enabled the Authority to make adverse credibility findings against a visa applicant which were material to the outcome of the review on the basis of “new information” which then did not form part of the review material before it. That would be inconsistent with s 473DB.”
The Authority correctly intellectually engaged on the question as to the application of each limb of s. 473DD(b) of the Act. It found that there was no reason given by the applicant as to why each of the new country information, and the letter from Dr Al-Haj.I.S.Hameed, could not have been provided to the Minister before the delegate made their decision. The Authority also found that it was not satisfied that the information could have been considered credible personal information. The country information referred to by the applicant related to Tamils in the northern parts of Sri Lanka in general. The information could not be considered as being personal, in the context of it being in respect of the applicant, in any particular sense. In AUS17 v Minister for Immigration and Border Protection & Anor (2020) 384 ALR 196 at [24].35, Edelman J said as follows:
“[24] … Plainly, country information is not personal information, which in broad terms is “information or an opinion about an identified individual, or an individual who is reasonably identifiable.” [1]
[1] Section 5(1) of Migration Act 1958 (Cth) re definition of “Personal Information” in s. 6(1) of the Privacy
The Court finds that the Authority correctly approached its consideration of the application of s. 473DD of the Act in conformity with what was held in AUS17 at [11] per Kiefel CJ, Gageler, Keane, Gordon JJ where it was said:
“[11] Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.”
Further, the Authority was not satisfied that exceptional circumstances justified its consideration of such information as was put before it in any event. The Authority was assisted by its having obtained the 24 January 2017 DFAT report when it assessed whether there was a real chance of the applicant being persecuted should he be returned to Sri Lanka. It was not satisfied that there were reasonable grounds for believing that the applicant would face serious harm should he so be returned to Sri Lanka.
There is no merit to Ground 1 of the Amended Application for Review.
Ground 2 of the Amended Application for Review was a claim that the Authority had failed to take into account the applicant’s real or perceived links to the LTTE, and as to the applicant’s claims of continuous harassment by the Sri Lankan authorities. There is no merit to such claim.
At [8] of its reasons, the Authority recorded that the applicant had claimed that the SLA and CID had interrogated him about his and his brothers LTTE involvement before he was burnt and beaten. The Authority noted the applicant’s claims that he had been harassed by the Sri Lankan authorities at [15] – [16] of its reasons. As to that, the Authority found that because of the lack of interest which the authorities had shown in following up the applicant’s family about the applicant, as well as the positive change as disclosed in country information, the authorities had no ongoing interest in the applicant.
At [24] of its reasons, when considering the country information before it, the Authority said as follows:
“[24] I have taken into consideration the country information that was before the delegate. In the opinion of the United Nations High Commissioner for Refugees (UNHCR), a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. However, originating from an area that was previously controlled by the LTTE does not, in itself, do so. Although the nature of these links can vary, they may include:
·Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
·Former LTTE combatants or “cadres”;
·Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);
·Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
·LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; or
·Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.”
(footnotes omitted)
At [27] – [29] inclusive of its reasons, after having considered all of the evidence before it, the Authority found that it was not satisfied that the applicant was at risk of harm by reason of any LTTE involvement, or any perceived link to the LTTE, for any of the applicant’s claimed reasons. It found that the applicant did not have any profile over and above any other Tamils who lived in the Northern Province, including those who may have had family members who had performed low ranking roles within the LTTE in the past. The Authority said as follows:
“[27] Having regard to the evidence before me, I am not satisfied that the applicant is at risk of harm because he and his family lived in an LTTE controlled area during the war or because his brother was in the LTTE. For significant periods of time during the civil war the LTTE had effective control of the north’s administrative, judicial and military institutions, resulting in a situation where the majority of civilians in the area had some degree of contact with the LTTE in their daily lives, including through personal connections.12 To that extent, I do not consider the applicant has a profile over and above other Tamils in the Northern Province who may have had family members performing low ranking roles within the LTTE. I have taken into consideration Brother NS’s relatively young age when he was killed, the absence of any evidence he was a senior or high profile LTTE member as well as the amount of time (twenty years) which elapsed before the authorities became sufficiently motivated to follow up with Brother NS’s family.
[28] Furthermore, the applicant was just three years old when Brother NS was killed, whereas his other brother, who is also older than the applicant (‘Brother NR’) and resides in [town omitted], was ten. The applicant claimed at interview he speaks regularly to Brother NR , and the applicant confirmed that to the best of his knowledge, Brother NR has never been interrogated by the authorities or otherwise harmed. The applicant suggested because Brother NR speaks Sinhala, as well as Tamil, the authorities are not suspicious of him, however I do not accept this adequately explains why the applicant instead would be the subject of the authorities’ interest should he return to Sri Lanka.
[29] On the basis of the evidence before me regarding the applicant’s personal circumstances, and considered in the context of the significant improvements in Sri Lanka under the Sirisena government, I am satisfied the applicant would not be required to continue reporting upon return to Sri Lanka. Although I am satisfied the applicant breached his reporting requirements by departing the country illegally, he has not claimed any adverse consequences as a result. I find the limited interest shown after his departure, and the lack of recent follow up to be significant in this regard. Furthermore the applicant has not been in Sri Lanka since the Sirisena government assumed power and I am not satisfied he has any sort of ongoing profile of interest. I am also satisfied, given the amount of time which as elapsed since the applicant was last in Sri Lanka, there is no real chance the applicant would suffer serious harm on account of failing to meet his previous monthly reporting requirements by departing the country in 2012.”
[names of towns omitted]
The Authority, at [21] – [30] of its reasons, also addressed the question as to whether the applicant would face any risk of harm because of any imputed LTTE or anti-government opinion of him, or that he would be returning to Sri Lanka as a failed asylum seeker. The Court finds that the Authority did actively intellectually engage on the question as to whether the applicant had any real or perceived links to the LTTE, and as to his claims of harassment by the Sri Lankan authorities. The Authority did not accept the applicant’s claims as being credible.
It cannot be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
There is no merit to Ground 2 of the Amended Application for Review.
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. 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.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
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[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
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[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate: LE
Dated: 10 August 2021
Act 1988 (Cth).
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