Aoc19 v Minister of Immigration
[2020] FCCA 1621
•19 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOC19 v MINISTER OF IMMIGRATION & ANOR | [2020] FCCA 1621 |
| Catchwords: MIGRATION – Judicial review – whether the Immigration Assessment Authority failed to lawfully construe and apply s.473DD of the Migration Act 1958 – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), s.5H, 36, 473CB, 473DD |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 AOV18 v Minister for Home Affairs [2018] FCA 1871 ASY17 v Minister for Immigration and Border Protection [2019] FCA 1888 AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053 BBE17 v Minister for Immigration and Border Protection [2019] FCA 573 BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 BVZ16 v Minister of Immigration and Boarder Protection [2017] FCA 958 CVV16 v Minister for Home Affairs [2019] FCA 1890 DKF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1963 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 DSD16 v Minister for Immigration and Border Protection [2018] FCA 1782 East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 Kirk v Industrial Court of New South Wales [2010] HCA 1 Minster for Immigration and Border Protection v BBS16 [2017] FCAFC 176 Minister for Home Affairs v Buadrom [2018] FCAFC 151 Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 Minister for Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 Plaintiff M174/2016 v Minister of Immigration and Boarder Protection [2018] HCA 16 Soliman v University of Technology, Sydney [2012] FCAFC 146 SZBRA v Minister for Immigration and Border Protection [2014] FCAFC 81 Wall v Repatriation Commission [2019] FCA 1838 |
| Applicant: | AOC19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 331 of 2019 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 3 February 2020 |
| Date of Last Submission: | 3 February 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 19 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boncardo |
| Solicitors for the Applicant: | Lander & Rogers Lawyers |
| Counsel for the Respondents: | Mr Kay-Hoyle |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
A writ of certiorari issue, quashing the decision of the second respondent (Authority) dated 24 January 2019 to affirm the decision of a delegate (delegate’s decision) of the first respondent (Minister) to refuse to grant the applicant a protection visa.
A writ of mandamus issue, remitting the matter to the Authority and requiring it to determine according to law the application referred to it by the Minister under s.473C of the Migration Act 1958 (Cth) for review of the delegate’s decision.
A writ of prohibition issue, prohibiting the Minister and his delegates, servants and agents from acting upon or giving effect to the Authority decision.
The Minister pay the applicant’s costs as agreed or assessed.
The matter is removed from the list of cases awaiting finalisation.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 331 of 2019
| AOC19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 3 October 2012.
On 4 May 2017 the applicant applied for a Safe Haven Enterprise Visa (SHEV) on the basis that he feared serious harm from Sri Lankan authorities by reason of his family’s political involvement with the Liberation Tigers of Tamil Eelam (LTTE) and by reason of his connection with a court case involving the Criminal Investigation Department (CID).
The applicant’s initial claim was as follows[1]:
[1] CB: 62 - 66
a)In 1990 the LTTE used a van owned by him to announce to all Muslims who were suspected of helping Sri Lankan forces to leave the Northern Province within 24 hours otherwise they would be killed. The applicant says that he had no choice but to provide the van and a motorcycle to the LTTE otherwise they would harm him;
b)His son A was taken by LTTE and he subsequently became a fighter for the LTTE. His son was arrested by the Sri Lankan authorities and was released from rehabilitation in 2010. The CID however continued to harass his son after his release;
c)His brother was also part of the LTTE and was killed fighting for them;
d)Due to his family’s political association with the LTTE, Sri Lankan authorities have always kept a close watch on his family and suspected that there were other familial affiliation with LTTE;
e)The LTTE also continued to demand money and other supplies from his shop which made his family appear to be LTTE supporters;
f)In 1994 he was ambushed by three people and strung from a tree and badly beaten;
g)In February 2009 the CID threatened to kill his family if he did not comply with their request for him to accompany them to a particular location. He reported the incident and motorcycle licence number to the police. Court proceedings were initiated as a result of this however the matter remains unresolved;
h)After lodging the court case he received threatening calls and letters advising him to withdraw his complaint;
i)In 2012, after he left Sri Lanka, his other son was beaten by police and was demanded to provide his father’s location. In December 2013, his son was approached again by police demanding the same. He did not disclose his father’s whereabouts and so was again beaten.
On 28 March 2018, the applicant participated in an interview with the delegate of the Department of Home Affairs. During the interview the applicant provided further information, including:
a)That his son V was further assaulted in 2018 by what the applicant believed were men from CID, wearing civil clothes but with a gun;
b)That his older sister’s sons were cadres for the LTTE, that one of his nephews died in a battle and that the other was rehabilitated and has since been released;
c)That the persons responsible for the ambush and beating he received in 1994 spoke both Sinhala and Tamil, that they were armed and that after the beating they left him for dead;
d)That at one point after leaving court he was taken by the CID, detailed for about five hours, beaten and questioned[2]; and
e)That there was an incident that immediately prompted him to flee, where men came to him in the paddy field.[3]
[2] This was said with the assistance of the applicant’s agent
[3] This was said with the assistance of the applicant’s agent
Subsequently, on 10 April 2018, the applicant made further submission to the delegate post the SHEV interview. It was further explained that:
a)In September 2012, immediately before he fled to Australia, the applicant was approached by three men whilst he was in a hut on his paddy field, where he had been sleeping and where he hid. They woke him and spoke to him about the court case. One of them had a gun and beat the applicant with it, then put the barrel of the gun into the applicant’s mouth and said that the applicant would not be alive next week if the court case was not withdrawn by then. The next day the applicant fled.
On 11 May 2018 the applicant’s SHEV application was refused by the delegate. In determining the application, the delegate found that[4]:
[4] CB: 216-217
a)the applicant is a Tamil male and a practising Catholic;
b)the applicant’s immediate family continue to reside in different parts of the province;
c)the applicant is not in contact with his five siblings;
d)the applicant was never involved with the LTTE in a combat capacity although he occasionally gave low-level support to both sides of the conflict;
e)the applicant’s son A fought for the LTTE as a low-level cadre, was captured in 2009 and sent to a rehabilitation centre before being released in 2010;
f)the applicant’s younger brother fought for the LTTE and died in battle in 2008;
g)two nephews of the applicant served with the LTTE with one being killed in battle while the other was captured, rehabilitated and released after the end of the war;
h)the applicant’s van was commandeered by the LTTE in 1990 for propaganda purposes;
i)the applicant’s brother-in-law was shot and killed while serving with the LTTE;
j)the applicant was kidnapped and beaten by unknown assailants in 1994;
k)the applicant was displaced at different refugee camps in the 1990s;
l)the applicant ran a shop in Murangan Petti in the 1990s, had his shop destroyed amid local strife in the 1990s and at other times did farming work on nearby land until in 2012;
m)the applicant’s business premises were destroyed by army personnel and others on more than one occasion in the 1990s and early 2000s;
n)the applicant’s tractor and one other machine were taken by unknown men in 2008, threats were made against the applicant and the tractor was only retrieved after payment of a one lakh bribe by his family;
o)two men from the CID came to the applicant’s house in 2009 and made threats against him;
p)the applicant has an extant court matter relating to the violent threats made against him in 2009 and had multiple dealings with court bodies during 2009-12;
q)threats were frequently made against the applicant relating to the ongoing court matter;
r)the applicant was threatened and assaulted by three unknown men in his paddy field in 2012 and one of the men placed a gun to the applicant’s mouth;
s)the applicant sought to minimise his interaction with government and CID authorities;
t)the applicant departed Sri Lanka illegally by boat in September 2012; and
u)the applicant’s son V was approached by police in 2012 and again in 2013 in relation to his father and was threatened and beaten by them.
The delegate found, by reference to country information, that[5]:
i)The applicant did not have a profile of interest to Sri Lankan authorities and the chance he would face serious harm because of any real or perceived links to the LTTE was remote;
ii)The applicant did not have a well-found fear of persecution because of his perceived association with the LTTE;
iii)The applicant’s cumulative risk profile did not determine that he faced a real chance of persecution presently or in the foreseeable future;
[5] CB: 217-222
On 16 May 2018, the delegate’s decision was referred to the Immigration Assessment Authority (“Authority”) for fast tracked review under Part 7AA of the Migration Act 1958 (Cth) (“the Act”).
The Authority had before it the review material as well as the applicant’s submissions and statement that contained what was described as ‘new information’.
Most notably, the submission detailed that the applicant himself had been a member of the LTTE for more than 20 years and that immediately prior to fleeing Sri Lanka, the applicant had been tortured and sexually abused.
It was explained in the submission that it was not unusual for members of the Tamil diaspora to fear disclosing their own membership of the LTTE to the Australian government, for fear this would come to the attention of the Sri Lankan authorities. The reasons for not disclosing the sexual assault were also explained.
The applicant’s statement outlined the detail of the applicant’s LTTE involvement, gave more detail about the assault which occurred in September 2012 and an explanation as to why he had not disclosed his LTTE involvement earlier to the Australian government.
The applicant claimed that:
a)He was told by people on the boat he was transported to Australia on not to disclose his LTTE membership, as the Australian government would view him as violet and return him back to Sri Lanka;
b)He joined LTTE in 1986 and had undergone military training with them in 1990 for 6 months and thereafter worked as a sentry and other ad hoc jobs until 2006;
c)He attended CID offices and was interrogated and tortured. The CID were aware of his LTTE involvement;
d)He was sexually abused by the three men who attacked him the paddy field in 2012. The applicant asserted that he did not disclose the nature and extent of the assault because his solicitor at the time was a woman and felt uncomfortable making such disclosures.
Authority’s decision
The Authority first assessed whether to consider the ‘new information’ disclosed by the applicant.
The Authority noted that the applicant had ample opportunity to disclose the information and that he had been told that he may not have further opportunities to provide information. The Authority concluded that the applicant would have been aware his application might have been unsuccessful and that he could be removed from Australia. The Authority noted that the applicant had been informed by the delegate that any information disclosed would be kept confidential.
The fact that the applicant had willingly provided information about his family members’ involvement with the LTTE was, according to the Authority, at odds with the applicant’s claim that he was fearful of disclosing an LTTE association.
The Authority did not accept the applicant’s explanation as to why he had previously not disclosed his LTTE membership and activities.
In the end, the Authority concluded that there were no exceptional justifying consideration of the new information.[6]
[6] Applicant’s submissions [28]
In respect of the applicant’s substantive claim, in summary[7] the Authority:
[7] But not referring to all of the findings
a)Rejected the applicant’s claim that he was targeted by the authorities and that his shop was destroyed numerous times by those authorities;
b)Accepted the applicant’s claim that in 1990 when the LTTE requested the use of his vehicle it was provided to them, that his level of involvement with the LTTE was minor and that there has been a significant effluxion of time since he provided the assistance to the LTTE;
c)Accepted the applicant’s claim that in 1994 he was subject to an attack whilst on the way to work but rejected the applicant’s claim that the incident was related to any connection of the applicant with the LTTE; rather the Authority considered the assault was a random act by criminals;
d)Accepted the applicant’s claim that he had 5 children;
e)Rejected the applicant’s claim that his son A was a former LTTE member or that he had attended rehabilitation or that he was harassed by then CID;
f)Rejected the applicant’s claim that his brother (having accepted that the applicant was one of nine children) was a LTTE member or that he was killed fighting for the LTTE;
g)Rejected the applicant’s claim that he had two nephews who were also LTTE members, one of whom was killed during the war;
h)Rejected the applicant’s claim that two men had attempted to abduct him in February 2009 on account of his connection with the LTTE;
i)Rejected the applicant’s claim that he had been involved in a Court case involving CID men between 2009 and the time he left Sri Lanka in 2012;
j)Rejected the applicant’s claim that the CID visited his family in July 2017; and
k)Rejected the applicant’s claim that his son V had been beaten in March 2013 or March 2018 or that he required emergency transportation to hospital for soft tissue injury.
The Authority concluded that the applicant was not of any adverse interest to the Sri Lankan authorities on account of his perceived LTTE association. It determined that the applicant did not meet the definition of refugee under s5H(1) the Act and thus the criteria under s36(2)(a). It concluded that there were no substantial grounds for believing that there was a real risk the applicant would suffer harm if he returned to Sri Lanka for the purposes of s36(2)(aa) of the Act.
Determination
Ground 1
In Ground 1, the applicant asserts that the Authority committed jurisdictional error in determining whether there were ‘exceptional circumstances’ justifying the exercise of its discretion to consider new information under s.473DD by:
a)Failing to take into account a relevant consideration, namely, the significance of the ‘new information’ in the context of the applicant’s claims.
Particulars:
i)The applicant submits that the Authority did not consider or otherwise evaluate the importance of the new information in the context of the applicant’s claims, particularly given his claim to have a well-founded fear of persecution and/or by reason of his connection to the Court case involving the CID.
ii)The applicant further submits that the Authority failed to engage in an active intellectual process or rather give genuine consideration in assessing the significance of the new information.
b)Limiting its evaluation to the applicant’s explanation for not disclosing the new information earlier.
Particulars:
i)The applicant submits that in confining its evaluation the Authority misconstrued and misunderstood the nature of the question it was required to answer by placing an unduly narrow interpretation on ‘exceptional circumstances’.
The default position or ‘primary rule’ is that the Authority must consider the review material provided under s.473CB without accepting or requesting new information.[8] However, s.473DD of the Act governs the circumstances in which the Authority may consider ‘new information’.
[8] Plaintiff M174/2016 v Minister of Immigration and Boarder Protection [2018] HCA 16 (“Plaintiff M174”)
Whether information is “new information” is a matter to be determined by having regard to the legislative provisions.
The task for this Court is not to “consider whether the reasoning process of the Authority was one which would satisfy the Court.”[9]Rather, it is a question of “whether the reasoning process displayed a misunderstanding of the nature and extent of the prohibition and the task of the Authority in forming the required state of satisfaction”[10].
[9] AOV18 v Minister for Home Affairs [2018] FCA 1871 (“AOV18”) at [6]
[10] AOV18 at [6]
The phrase ‘exceptional circumstances’ in s.473DD is not defined in the Act. However, the term is not one of art and is to be given its ordinary meaning.[11] Circumstances need not be unique, unprecedented or rare to be exceptional[12], and they may be exceptional if they can reasonably be seen to produce a situation that is out of the ordinary course, unusual or uncommon.[13]
[11]Plaintiff M174 at [30]; See also BVZ16 v Minister of Immigration and Boarder Protection [2017] FCA 958 (“BVZ16”)
[12] AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053 (“AYK17”) at [61]
[13] AYK17 at [61]; see also CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 at [26]
It is agreed that the Authority determined the issue of the ‘new information’ by reference to s.473DD(a) only.
Whilst the requirements of subparagraphs (a) and (b) of s.473DD are cumulative, they may nevertheless overlap with the effect that the Authority’s consideration of either or both of the limbs in subparagraph (b) may inform the Authority’s satisfaction under subparagraph (a) as to whether there are “exceptional circumstances” to justify considering the new information[14].
[14] Minster for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]
There is no statutory requirement for an assessment of the subparagraphs (a), (b)(i) or (b)(ii) of s.473DD in a particular order.[15]However, if, on the evidence, s.473DD(b) is not satisfied (or vise versa) then that is sufficient to warrant the prohibition of s 473DD altogether.[16]
[15] DSD16 v Minister for Immigration and Border Protection [2018] FCA 1782; AOV18 at [4] per Colvin J
[16] AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33] per Mortimer J;
BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26] per Barker J
However, in assessing whether there are exceptional circumstances the Authority is obliged to consider all the relevant circumstances, which will usually include the matters in s.473DD(b)(i) and/or (ii).[17]Each case must be approached on its merits, and while in considering exceptional circumstances it is not necessary to consider all aspects of the second requirement in s.473DD(b), appropriate consideration of those aspects will depend on the nature of the new information.[18]
[17] Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [51]
[18] See AOV18 at [4]
Satisfaction that new information is ‘credible personal information’ which was previously not known for the purposes of s.473DD(b)(ii) is capable of contributing to or resulting in satisfaction that there are exceptional circumstances justifying consideration of the information.[19]
[19] BVZ16 at [9]; DKF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1963 at [12] per Thawley J; CVV16 v Minister for Home Affairs [2019] FCA 1890 (“CVV16”) at [41]
The Authority’s reasons for rejecting consideration of the new information which the applicant sought to advance are contained at [5]-[16] of its reasons.
It was submitted on behalf of the applicant that the Authority focused entirely on the opportunities the applicant had been provided with to disclose this information previously to the Australian authorities and the delegate. This concern was at the heart of its reasons:
“If the information presented in the IAA statement were true I find it difficult to accept that the would not have mentioned these claims in his previous interactions with the Department. I have too many doubts to be satisfied as the the reliability of the information provided. I am not satisfied there are exceptional circumstances to justify considering the new information”
The respondent argues that there was no failure to consider the significance of the information and that its significance was bound up with the nature of the information and the manner in which it was presented.
Where reasons for a procedural decision are given, those reasons must be treated as the real reasons for the Authority’s decision in respect of the discretion under s.473DD[20].
[20] East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 at [228] per Ashley and Redlich JJA; Wall v Repatriation Commission [2019] FCA 1838 at [60]
The Authority’s reasons in respect of not being satisfied as to exceptional circumstances are quite lengthy[21] . The Authority in its reasons summarised the new information, noted the explanations given by the applicant and on his behalf for not mentioning the new information previously.
[21] 11 paragraphs out of 73 paragraphs in total deal with this issue, namely, [5] to [15] of the reasons
It is apparent from its reasons that the Authority was engaged in an examination of the veracity of the applicant’s explanation, rather than a more general evaluation of the material against the statutory criteria and the applicant’s claims.
It is apparent from reading the Authority’s reasons that at no point in those reasons does the Authority expressly evaluate or make any assessment of the significance of the new information:
a)to the applicant’s claim that he had a well-founded fear of persecution owing to his association with the LTTE; or
b)that he was a person in respect of whom there were substantial grounds for believing there was a real risk he would suffer significant harm if he was returned to Sri Lanka.
As submitted on behalf of the applicant, the Court accepts that this was a core aspect of the applicant’s claim for a SHEV.
Therefore, the Authority’s failure to mention or deal with these matters in its reasons leads the Court to infer that these matters had not actually been considered by the Authority.[22]
[22] Soliman v University of Technology, Sydney [2012] FCAFC 146 at [53]-[54]. See also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [69]
As such, the Authority failed to expressly evaluate the significance of the new information to the applicant’s circumstances and the claims he had made earlier:
a)The applicant’s asserted personal membership of the LTTE, in addition to his son’s, brother’s and nephews’ involvement (previously disclosed), was inherently capable of impacting the Authority’s assessment of the applicant’s claim; and
b)The extent of the assault in September 2012, which led to the applicant leaving Sri Lanka, was also material which was inherently capable of impacting the Authority’s assessment of the applicant’s claim to have a well-founded fear of persecution.
Furthermore, there was no consideration given by the Authority as to whether the information was not previously known, and had it been known, whether it may have affected the applicant’s claim.
The Authority’s failure to consider the significance of the new information amounts to jurisdictional error in the circumstances. It was a constructive failure to exercise jurisdiction[23] arising out of the adoption of too narrow an approach to s.473DD(a)[24] and it involved a failure to take into account a relevant consideration in assessing whether there were exceptional circumstances.
[23] BVZ16 at [46]-[48]; Kirk v Industrial Court of New South Wales [2010] HCA 1 at [74]
[24] CVV16 at [48]
These errors were material to the Authority’s decision. The correct application of the statutory test could have resulted in the making of a different decision.[25]
[25] Ibid; see generally Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [29]-[31]
Ground 1 is established.
Ground 2
In Ground 2, the applicant asserts, namely:
a)That the Authority committed jurisdictional error in failing to consider an integer or component integer of the applicant’s claim that he met the criteria under either s 36(2)(a) or s 36(2)(aa) of the Act.
Particulars:
i)The applicant says that prior to his departure from Sri Lanka to Australia, he was “assaulted by three men, beaten with a gun and had the barrel of the gun placed in his mouth whilst being told he would not be alive next week if the court case was not withdrawn”.[26] This was an integer of the applicant’s claim, as set out in the applicant’s submissions to the Delegate and as recorded in the decision of the Delegate.
ii)The applicant submits that the Authority failed to expressly mention this claim in their reasons and therefore has failed to consider or otherwise evaluate such claim in its entirety.
[26] CB: 181-182
The relevant legal principles make it clear that the Authority’s reasons do not require a line-by-line refutation of the evidence of the applicant either generally or in respect to evidence that is contrary to the findings of material fact by the Authority. [27]A finding of fact may not be required if the claim or issue is subsumed within a claim or issue of greater generality. [28] However, a failure to deal with a claim or component integer may lead to an inference that it was not considered.[29]
[27] See generally, Yusuf ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“Applicant WAEE”) at [47]
[28] Minister for Home Affairs v Buadrom [2018] FCAFC 151 at [46], [48], albeit said in a different context
[29] See generally, supra 27
The Authority’s duty is to review a decision referred to it by considering the review materials provided to it under s.473CB. This includes, relevantly: a statement of the delegate’s findings, the evidence on which those findings were made and the reasons for the decision, as well as the materials provided to the decision maker by the applicant.[30]
[30] s.473CB (1)
As such, the Authority may fail to fulfil its statutory duty to conduct a review by considering review material unless it undertakes a conscious consideration of the submissions, evidence and materials put by an applicant to the Minister (or delegate).[31] The Authority is obliged to consider the claims of a review applicant and their component integers.[32] A decision that does not consider such claims or their component integers may be vitiated by jurisdictional error. [33] The Authority is required to set out its reasons for decision and its findings on material facts. It is required to refer to the evidence or material upon which those facts are found.[34]A failure to deal with a claim or component in its reasons for decision may lead to the inference that the Authority failed to consider it[35].
[31] SZBRA v Minister for Immigration and Border Protection [2014] FCAFC 81 at [23]-[24]
[32] BBE17 v Minister for Immigration and Border Protection [2019] FCA 573 (“BBE17”) at [29] per Murphy J
[33] Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] per Allsop J; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] per Gummow and Callinan JJ
[34] ASY17 v Minister for Immigration and Border Protection [2019] FCA 1888 at [33] per White J. See also Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34]
[35] Applicant WAEE at [47] per French, Sackville and Hely JJ
Whilst the respondent conceded that the Authority did not specifically refer to the September 2012 attack in its reasons it submitted that it was part of the broader findings made about the applicant’s principal claim that he feared serious harm from Sri Lankan authorities by reason of his perceived connections to the LTTE and by reason of his connection with a court case involving the CID.
The respondent submitted that the Authority’s written decision addressed the September 2012 attack in the following manner (at [36])[36]:
“The applicant has claimed that in the period between the failed abduction (2009) and his departure from Sri Lanka (2012), he was subjected to ongoing threats on his life. He claimed that he was targeted because of the ongoing court case in which he was the complainant.
… I do not accept that he was involved in a protracted court case or that he received death threats and harassment on account of a court case”
[36] The Court does not accept the respondent’s submissions at [28] in respect of what the applicant’s representatives were said to have focused on. This is not a correct representation of what appears at CB: 274. Furthermore, the incident is specifically mentioned at CB:275
The applicant argued that the September 2012 attack was a core element being advanced by the applicant for the following reasons:
a)The attack was “separate and distinct” to the other matters and incidents pressed by the applicant.
b)The attack involved significant violence and ferocity by members of the CID. This specific incident was of a different and more serious nature to the antecedent incidents.
c)The attack spurred the applicant’s flee from Sri Lanka. In combination with the relative contemporaneity and ferocity of the incident, this was potentially critical to the applicant’s claim that he had a well-founded fear of persecution or that there was a real risk of significant harm if the applicant returned to Sri Lanka.
d)The recognition of the attack having occurred had the ability to refute the idea which was ultimately accepted by the Authority, that the Sri Lankan authorities and the CID alike had no continuing interest in the applicant.
The detail in the Authority’s reasons is notable:
a)There is detailed discussion of the applicant’s claims, by way of example, in respect of:
i)The applicant’s shop being destroyed in 1999;
ii)The attack on the applicant in 1994; and
iii)The incident in 2009 which led to the court case in which the applicant has been involved since then.
b)There is detailed discussion about weight attributed to the documents provided in support of the applicants claim. By way of one example, there is detailed explanation as to why the Authority was not satisfied that a National Identity Card submitted by the applicant did not satisfy it as to the applicant’s son identity (including a conclusion of the Authority itself that the person depicted in the photograph “in my view looks younger” than nineteen years). The National Identity Card could not have been said to be central to any of the applicant’s claims or their component integers.
The detail of the Authority’s reasons in respect of rejecting (or accepting) other incidents raised by the applicant is in contradistinction to the complete lack of express consideration or even mention of the September 2012 incident in the reasons overall.
Indeed, on one reading (which might be overly restrictive) of the Authority’s reasons in respect of why it found that there were no exceptional circumstances in respect of the new information, the Authority seems to have taken the view that there was no assault in September 2012 alleged by the applicant. The Authority’s reasons provide:[37]
“Whilst I note the sensitive nature of discussing sexual assaults for victims, in this particular case the applicant did not even raise the s uggestion of an assault in September 2012, even in general terms.” (emphasis added)
[37] CB: 293 at [13]
In the circumstances, and fairly read in the context of the record of decision and reasons, the fact that the Authority did not expressly address in its reasons the September 2012 attack means that it did not consider the claim. This was is a constructive failure to exercise jurisdiction.
Given that this was an important integer of the applicant’s claim, it might have affected the ultimate decision reached by the Authority. The failure to consider it was material and constituted jurisdictional error.[38]
[38]BBE17 at [47]
Ground 2 is established.
Ground 3
In Ground 3, the applicant asserts, namely:
a)That the Authority committed jurisdictional error in rejecting the applicant’s claim that his son was a member of the LTTE.
Particulars:
The applicant argues the following:
i)Its conclusion was illogical and irrational.
ii)Its conclusion was not based on materials or facts having logical or probative weight.
iii)It found that documents it did not identify or analyse 'raised suspicions about their authenticity', without adjudicating or otherwise assessing whether those documents were fraudulent or manufactured.
iv)It failed to give consideration to or otherwise assess evidence from Reverend Dr Swampillai about the Applicant's son.
v)It failed to give consideration to or otherwise assess evidence from the President of the Citizens' Committee Mannar District about the Applicant's son.
vi)It failed to engage in a careful, fair and reasonable assessment of this claim.
vii)Its decision was unreasonable.
The legal threshold for finding that a decision-maker’s reasons are irrational or illogical is very high. The High Court has observed that:
“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.” [39]
[39] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135]
Unreasonableness will be established where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to such decision.[40]
[40] Minister for Immigration and Citizenship v Li [2013] HCA 18
The applicant argued that the Authority premised its conclusion that A was not a member of the LTTE on three bases:
a)The applicant’s supposed indecision as to A’s age when he was recruited;
It was submitted that A’s age was clarified during the interview with the delegate, that the updated information fitted logically into the timeframe, that significantly the delegate who actually met and interviewed the applicant accepted the applicant’s claims in respect to A.
It was said that the Authority’s reliance on this matter was not based on probative material or logical grounds.
b)That the document produced from a particular priest was not genuine;
It was submitted that this reason was illogical. It was submitted that the mere fact that the letter appeared misaligned could not found a sound or rational basis for inferring that it was a forgery. It was further submitted that it was ignored by the Authority that A was residing at the institute and that the signature carried a name which was ‘plainly Italian’.
c)Its view that the other documents produced by the applicant relating to A ‘raised suspicion about their authenticity’.
It was submitted that this was nothing more than a bold assertion, and that the authenticity issues were not described in the reasons. It was submitted for reasons outlined that the documents were rational on their face.
At their highest, the applicant’s complaint is a disagreement with the Authority’s conclusion rather than the presence of irrational or illogical reasoning. While different minds may differ as to the conclusions reached, the conclusions reached by the Authority were open to it on the material. Although on one view, when read as a whole, the Authority’s reasons may be viewed as a “quest to disbelieve”[41].
[41] AVQ15 v Minister for Immigration and Border Protection & Anor [2018] FCAFC133 at [23] – [41] generally
The Court is further not satisfied that the Authority acted within the meaning of ‘legal unreasonableness’ with respect to rejecting the applicant’s claim that his son was a member of the LTTE. The Authority acted with a degree of intelligible justification that was open to it on the evidence.
It is not the role of this Court to re-assess the evidence that was before the Authority. To do so would be to conduct an impermissible merits review.
Ground 3 is not established.
Ground 4
In Ground 4, the applicant asserts, namely:
a)That the Authority committed jurisdictional error in rejecting the applicant’s claim that the CID visited the applicant’s family home on 6 July 2017 and accused them of supporting the LTTE.
Particulars:
i)The applicant submits that the Authority made conclusions that were illogical, irrational and that the findings were not open on the evidence.
ii)The applicant further submits that the Authority’s decision was ultimately unreasonable.
It was submitted by the applicant that the Authority advanced three bases for rejecting the applicant’s claim that the LTTE had visited his home on the particular date alleged. The three bases were said to be:
a)That the applicant’s evidence was ‘general’;
b)That a particular letter was ‘unreliable’; and
c)That the Authority found it surprising that the CID would be interested in the applicant 5 years after he had left Sri Lanka.
It was submitted that the first basis, namely, that the applicant’s evidence about this was ‘general’ was without rational foundation. It was submitted that the applicant was specific about this evidence to the delegate and as such, the evidence could not rationally be described as ‘general’.
Next, it was submitted that the second basis was inherently unsound. It was submitted that it was manifestly unacceptable for the Authority to assert that the information in the document was ‘unreliable’. As such, reliance on this matter to reject the claim was said to be illogical.
Lastly, it was submitted that the third basis was purely speculative.
The applicant’s arguments fall well short of establishing that the conclusions reached by the Authority were illogical or irrational:
a)It is firstly a complaint about a conclusion that the evidence was ‘general’ in nature. It is not irrational for a decision maker to take a view about the quality of evidence, nor was the particular view taken in the circumstances irrational;
b)The information in question was reported to the writer of the letter. The Authority did not make any finding that the complaint had not been made. Rather it found, based on the material before it that it was not satisfied that the information was reliable.
c)The argument that a matter was ‘purely speculative’ is evaluative, and as such, nothing more than a disagreement with the Authority’s conclusion. Supposing it was purely speculative does not make it illogical or irrational in the requisite sense.
Even if the Court is wrong about this, it has not been established by the applicant that these matters were material to the Authority’s ultimate decision.
Ground 4 is not established.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 19 June 2020
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