Ave17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 16
•28 January 2021
FEDERAL COURT OF AUSTRALIA
AVE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 16
Appeal from: AVE17 v Minister for Immigration & Anor [2019] FCCA 1194 File number: NSD 738 of 2019 Judgment of: NICHOLAS J Date of judgment: 28 January 2021 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court – whether a finding made by the Immigration Assessment Authority that the abduction of the appellant’s father was part of an extortion attempt was an illogical or irrational finding – where relevant finding open to the Authority to make on the material – no jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) s 5H(1), 36(2) Cases cited: Coulton v Holcombe (1986) 162 CLR 1
Han v Minister for Home Affairs [2019] FCA 331
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Metwally vUniversity of Wollongong (1985) 60 ALR 68
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 47 Date of hearing: 20 November 2019 Counsel for the Appellant: Mr D Godwin Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 738 of 2019 BETWEEN: AVE17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
28 JANUARY 2021
THE COURT ORDERS THAT:
1.The appellant be refused leave to file an amended notice of appeal.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the appeal.
4.The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
INTRODUCTION
This is an appeal from a judgment of the Federal Circuit Court of Australia given on 8 May 2019 rejecting the appellant’s challenge to a decision made by the Immigration Assessment Authority (“Authority”) on 14 February 2017 which affirmed the decision of the Minister’s delegate (“the Delegate”) to refuse to grant the appellant a Safe Haven Enterprise visa (“protection visa”).
The appellant, who was legally represented before the primary judge, relied on various grounds in support of his challenge to the Authority’s decision, all of which were rejected by the primary judge. The primary judge gave detailed reasons for his judgment. It is not necessary to refer to those reasons because, as the appellant accepts, the sole ground of appeal which he seeks to raise in this Court is based on a matter that was not raised before the primary judge.
The appellant filed his notice of appeal on 14 May 2019. In that document the appellant made it clear he intended to rely on the same grounds upon which he had relied before the primary judge. The appellant now seeks to rely on a proposed amended notice of appeal. During the course of the hearing the parties agreed that it was most convenient for me to deal with the question of whether or not the appellant should be granted leave to file the proposed amended notice of appeal after I had heard full argument in relation to the new ground of appeal now sought to be raised. It is accepted by the appellant that, in the event that leave to file the proposed amended notice of appeal is refused, then the appellant’s appeal should be dismissed.
In the present case I have concluded that the sole ground of appeal upon which the appellant seeks to rely lacks merit. Given that the proposed ground of appeal raises a matter not raised before the primary judge I think the appropriate order is to refuse the appellant leave to file his proposed amended notice of appeal and to dismiss the appeal with costs.
FACTUAL BACKGROUND
The appellant arrived in Australia on 13 October 2012. On 22 March 2016 he applied for the protection visa which the Delegate refused on 7 September 2016. On 13 September 2016 the appellant’s visa application was referred to the Authority.
The Authority concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) or meet the requirements of s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”). The Authority also found that the appellant did not meet the requirements of s 36(2)(aa) of the Act (ie. complementary protection).
The Authority accepted that the appellant is a national of Sri Lanka, a Tamil and a Hindu. It also accepted that he was born in 1994 in Negombo. The Authority noted that the appellant’s family was relatively wealthy and that his father was a goldsmith.
The Authority accepted that the appellant’s father was forced to pay money to the Liberation Tigers of Tamil Eelam (“LTTE”). According to the appellant, his father was forced to pay money to the LTTE for a period of time in or around 2001 or 2002 after they moved to Batticaloa District, in the Eastern Province in 2000. The appellant claimed that there were rumours in the village that his father had joined the LTTE.
In 2004 the appellant and his family moved to Jaffna in the Northern Province but they were rounded up by the Sri Lankan authorities in 2006. They then moved back to Batticaloa.
The appellant claimed that at the beginning of 2007 the Karuna group started to visit his family at home. He claimed that his father was called in for questioning by the Karuna group who demanded that he pay them money and that, after initially refusing to do so, he eventually agreed to pay them two lakhs. The appellant also claimed that members of the Karuna group returned to his home shortly after this occurred but his father was not at home.
The appellant’s father subsequently made arrangements to travel to the UK. His father briefly returned to Sri Lanka after the appellant’s mother experienced problems while pregnant. It was during this visit, according to the appellant, that his father was abducted in the early hours of the morning by the Karuna group. The appellant claimed that his father was able to escape and managed to return to the UK where he still remains.
The appellant also claimed that he had himself been the subject of an unsuccessful abduction attempt in June 2011 by members of the Karuna group.
Key findings of the Authority appear in paragraphs [33] and [34] of its reasons:
33.I accept that applicant and his family lived in LTTE controlled areas at times during the war; that his father was forced to pay money to the LTTE in around 2000 or 2001 until the family moved to Jaffna; that his father was rumoured to have joined the LTTE and the local Batticaloa villagers called them a ‘Tiger family’; that the applicant and his family were taken in a round up by the Sri Lankan authorities in Jaffna in 2006; that on the family’s return to Batticaloa in 2007 his father was threatened by the Karuna Group and agreed to pay them money before leaving for the UK; that when his father returned briefly from the UK prior to April 2008 he was kidnapped by the Karuna Group but escaped and returned to the UK where he unsuccessfully sought asylum; and that men from the Karuna Group tried to abduct the applicant in June 2011 and watched him and called out to him for a time afterwards.
34.Having regard to the UNHCR guidelines and the other information before me, I do not consider the applicant to be at risk of harm for reason of any imputed LTTE links or political opinion, now or in the reasonably foreseeable future, for a number of reasons. First, although the family lived in a LTTE controlled area and his father was forced to pay the LTTE money, on the evidence people living in LTTE areas commonly had to interact with the LTTE on a day to day basis and residing in a LTTE controlled area of itself does not give rise to a need for protection. Secondly, other than being taken by the Sri Lankan authorities during a round up in 2006, the applicant and his family have never been been [sic] arrested, detained, questioned and/or harmed by the Sri Lankan authorities about any matter including his father’s payments to or rumoured membership of the LTTE. Thirdly, although his father was questioned in 2007 by the Karuna Group, which had links at the time to the Sri Lankan authorities, it was in relation to extorting his father for a payment of two lakhs. Fourthly, because it occurred not long after the 2007 extortion and in the absence of any claim that the applicant’s family were questioned afterwards by the Karuna Group about his father’s whereabouts after his father escaped, I am satisfied that the kidnapping of his father prior to April 2008 was another extortion attempt. Fifthly, as the men who attempted to abduct him were unwilling to proceed in front of a gathering crowd and, although some men watched him and called out to him for a time afterwards, no effort was made to arrest him while he remained in Batticaloa until he left for Colombo two or so months later, I am satisfied the Karuna Group’s interest in the applicant was not on behalf of the Sri Lankan authorities. Seventhly, the applicant and his family do not claim to have been questioned by the Sri Lankan authorities anytime since April 2008 about his father’s whereabouts or his father claiming asylum in the UK. Eighthly, the applicant does not claim that his family have been questioned by the Sri Lanka authorities about the applicant’s whereabouts since he left Sri Lanka in July 2012. I am not satisfied that the authorities would have had any adverse interest in the applicant if he had remained in Sri Lanka or that he would be of any adverse interest to the current Sri Lankan authorities on return. Given the above factors, and the country information, I consider any risk of harm to the applicant from the authorities based on his profile, including as a young Tamil male from the east, to be remote.
The Authority concluded at para [36] of its reasons that the Karuna group’s interest in the appellant and his father arose from the Karuna group’s criminal activities. The Authority said at para [36] of its reasons:
36.I accept that the applicant’s father was subject to extortion from the Karuna Group in 2007 and was kidnapped by them, but escaped, prior to April 2008. I also accept that the applicant was subject to an attempted abduction by two men from the Karuna Group in June 2011 and for some time afterwards men from the Karuna Group watched him from a distance and called out to him. Based on the country information that indicates the Karuna Group was reported to be involved in crime, and my findings discussed above that the Karuna group’s interest in the applicant, and his father, was not based on any concerns about their LTTE links or imputed political opinion on behalf of the Sri Lankan authorities, I am satisfied that the Karuna Group’s interest in the applicant and his father arose from the Karuna Group’s criminal activities.
The Authority also noted that the appellant did not claim that his family received any demands for money, or visits or calls from the Karuna group about his father or his father’s whereabouts in the more than eight years since his father left Sri Lanka for the UK. Having referred to the attempted abduction of the appellant by the Karuna group, the Tribunal noted that the Karuna group had not approached the appellant’s family in Sri Lanka about the appellant or his whereabouts in the more than four years since he left Sri Lanka and that the appellant did not claim that the Karuna group threatened, extorted or harmed any other members of his family while he was in Sri Lanka or after he left Sri Lanka.
The Authority then referred to country information in relation to paramilitary groups operated in Sri Lanka, including the Karuna group. It said at paras [37]-[41] of its reasons:
37.DFAT states it is aware of credible reports of paramilitary groups, including the Karuna Group, being involved in criminal activities but verifying such reports is difficult. DFAT also states that extra-judicial killings, disappearances and kidnappings for ransom were a frequent occurrence during the war, particularly in the north and east, and were carried out by, among others, paramilitary groups, but assesses that the number of these incidents, including kidnappings for ransom, has considerably fallen since the end of the war. The USDOS 2016 report covering events in Sri Lanka in 2015, mentions the activities of paramilitary groups in relation to allegations of abducting people with LTTE connections, and their historical activities as covered by the OHCHR report released that year, but not in relation to any criminal activities. Additionally, the same report only specifically mentions the Karuna Group in relation to historical child recruitment activities as outlined in the OHCHR report.
38.The delegate referred to a range of country information that confirms that the Karuna Group and other paramilitaries operated with a large degree of impunity under the former Rajapaksa government. However, with the change of government in 2015, there are reports that action has since been taken against a number of former high profile members of Karuna Group and the associated TMVP. The delegate also noted that he was unable to locate any credible or specific country information that indicates that Karuna Group or TMVP members or former members were involved government supported paramilitary or paramilitary criminal activity since the Sirisena Government came to power.
39.The Karuna Group extorted and unsuccessfully kidnapped, as he escaped, the applicant’s father in 2007 and prior to April 2008 respectively. The applicant does not claim that his family received any visits, calls or demands for money from the Karuna Group about his father or his father’s whereabouts in the more than eight years since his father left Sri Lanka for the UK. Just over three years after they kidnapped his father, the Karuna Group attempted to abduct the applicant in June 2011. The abduction attempt was unsuccessful because a crowd gathered after the applicant screamed when the men took hold of him. Men from the Karuna Group watched him, and called out to him, from a distance afterwards, but in the two or so months he remained in Batticaloa before he went to Colombo they made no further attempt to abduct the applicant. The applicant does not claim that his family received any visits, calls or demands for money from the Karuna Group about him or his whereabouts in the 12 months or so that he was staying in Colombo. On my findings, the Karuna Group have not approached the applicant’s family in Sri Lanka about the applicant or his whereabouts in the more than four years since he left Sri Lanka. The applicant does not claim that the Karuna Group threatened, extorted or harmed any other members of his family while he was in Sri Lanka or, on my findings, after he left Sri Lanka.
40.Given the Karuna Group has not followed up in any way after his kidnapped father escaped from them and their limited follow up actions around the time of their attempted abduction of the applicant and that more than eight years and four years have passed without any further incidents or follow up in relation to the applicant's father and the applicant respectively, I am not satisfied that the Karuna Group would have any adverse interest in the applicant, if he returned to Sri Lanka. Additionally, the country information discussed above suggests the power, impunity and activities of the Karuna Group have diminished.
41.As such, I am satisfied that the chance that the applicant will experience any harm from the Karuna Group, if returned to Sri Lanka, now or in the reasonably foreseeable future is remote.
(footnotes omitted)
There are a few points to note in relation to these paragraphs.
First, the reference in [37] to the war is a reference to the civil war fought between 1983 and 2009. It was common ground that the war ended in 2009.
Secondly, the reference to the USDOS 2016 report in [37] relates to paramilitary groups in general and does not, it seems, single out the Karuna group except in relation to historical child recruit activities. This is to be read together with [38] which indicates that the Delegate was unable to locate any credible or specific country information indicating that the Karuna group were involved in Government supported paramilitary activity since President Sirisena came to power. Paragraph [31] notes that he became President of Sri Lanka in January 2015.
Thirdly, the Authority found in [39] that the Karuna group had not approached the appellant’s family about the appellant or his whereabouts for more than four years since he left Sri Lanka in July 2012. At [40] the Authority notes that it was not satisfied the Karuna group would have any adverse interest in the appellant if he were to return to Sri Lanka.
THE PROPOSED GROUND OF APPEAL
The sole ground of appeal upon which the appellant now seeks to rely is as follows:
The primary judge erred in not finding that the Immigration Assessment Authority had based its state of satisfaction on a finding of fact that was not supported by logically probative evidence the fact being that the abduction of the appellant’s father by the Karuna group was another extortion attempt.
Some of the authorities concerning the undesirability of allowing a party to raise a new argument in circumstances where, whether deliberately or by inadvertence, it was not advanced below, are referred to by Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [10]-[17]. They include Metwally vUniversity of Wollongong (1985) 60 ALR 68 at 71, Coulton v Holcombe (1986) 162 CLR 1 at 8 and, in the context of migration appeals, VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 (“VUAX”) at [46]-[48]. In that case the Full Court (Kiefel, Weinberg and Stone JJ) said in VUAX at [48]:
The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.
The merits of a point not raised below is a matter of importance in determining whether leave to raise it should be granted. Although the fact that an appellant had legal representation below may weigh against a grant of leave, it is not a decisive consideration and, if the new ground has merit, then it may be appropriate to permit the point to be raised on appeal in the interests of justice and, in particular, for the purpose of determining whether an administrative decision affecting the rights and interests of the appellant was lawfully made and, if not, granting appropriate relief.
THE PARTIES’ SUBMISSIONS
The appellant submitted that the positive finding made by the Authority that the abduction of his father was for the purpose of extortion was not supported by logically probative evidence. He submitted that the circumstances of his father’s first encounter with the Karuna group were quite different because it had previously successfully extorted money from the father without abducting him. He submitted that if extortion was the group’s objective they could simply have demanded a further payment, but did not do so. Further, he submitted that the absence of any demand for payment at the time strongly suggests that extortion was not their aim and that a different motive could not be logically excluded in circumstances where there was no demand for ransom.
The appellant also submitted that the failure of the Karuna group to follow up with the family as to the whereabouts of the father was a neutral matter and was not a matter which suggested that the abduction was for extortion reasons rather than political or ethnic reasons.
Ultimately, the appellant’s submission was that the Authority’s finding that the abduction of the father by the Karuna group was for the purpose of extortion and was not motivated by his perceived LTTE connections was illogical and not one that any reasonable decision-maker could arrive at on the material before it.
The Minister submitted there was nothing illogical or irrational about the Authority being satisfied that the 2008 abduction was another extortion attempt. It referred to country information which stated that the Karuna group was involved in criminal activities, and also that “kidnappings for ransom were a frequent occurrence during the war” which were carried out by paramilitary groups (including the Karuna group). According to the Minister, the country information provides a rational and logical basis for the Authority’s findings especially when the views expressed in the country information were borne out by the appellant’s own claim (accepted by the Authority) that his father had been a victim of extortion by the Karuna group in 2007.
The Minister submitted that the appellant’s proposed challenge to the Authority’s decision on the grounds that the relevant finding was irrational and illogical, was no more than an alternative view of the facts which the Authority could have, but ultimately did not, accept. The Minister submitted that the question whether the Authority’s conclusion that the 2008 abduction was another extortion attempt was one that a rational and logical Authority could have reached on the material before it, and that the appellant’s argument was, ultimately, no more than an expression of disagreement with what the Authority found.
The Minister also submitted that, even if the relevant finding was affected by irrationality or illogicality, the finding that the 2008 abduction was another extortion attempt was not material to the Authority’s decision and hence would not amount to jurisdictional error. The Minister submitted that this was because the appellant could not show that the Authority’s decision could realistically have been different given its other findings.
CONSIDERATION
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, the High Court was concerned with the question whether the Refugee Review Tribunal had committed jurisdictional error by making findings, or engaging in a process of reasoning, that was illogical or irrational when concluding that it was not satisfied that the applicant met the criteria for a protection visa.
Gummow ACJ and Kiefel J (as her Honour then was) referred with approval to an earlier statement made by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [37]-[38]. Gummow ACJ and Kiefel J said at [40]:
[40]It was against this background that, when considering s 65 of the Act in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB, Gummow and Hayne JJ said:
“The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a ‘jurisdictional fact’ or criterion upon which the exercise of that authority is conditioned. The delegate was in the same position as would have been the Minister (s 496) and the Tribunal exercised all the powers and discretions conferred on the decision maker (s 415).
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.”
However, it should be remarked that what is characterised as the “critical question” should not receive an affirmative answer that is lightly given. It may be noted that the outcome in SGLB and in Applicant S20/2002 was to deny the presence of jurisdictional error. This reflected the approach upon judicial review earlier expressed in Wu Shan Liang to which earlier reference has been made.
(footnotes omitted)
Crennan and Bell JJ said in SZMDS at [129]-[131]:
[129]… accepting that an allegation of “illogicality” or “irrationality” must mean something other than emphatic disagreement as explained above by reference to Eshetu and Applicant S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do “illogicality” and “irrationality” fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is “clearly unjust”, “arbitrary”, “capricious” or “Wednesbury unreasonable”?
[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.
(footnotes omitted)
Crennan and Bell JJ also said at [135]:
[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.
In the present case the Authority’s process of reasoning may be summarised as follows.
First, the Authority accepted that the appellant’s father was the subject of extortion by the Karuna group in 2007. Secondly, the Authority accepted that following his return to Sri Lanka from the United Kingdom, the father was abducted by the Karuna group. Thirdly, since the abduction occurred not long after the 2007 extortion, and in the absence of any claim by the appellant that his family were questioned afterwards by the Karuna group about his father’s whereabouts following his escape, the Authority was satisfied that the kidnapping of the father was another extortion attempt.
The question is whether the finding that the abduction of the father was part of an extortion attempt was an illogical or irrational finding not based on probative evidence or, viewed another way, whether the process of reasoning that led the Authority to infer that the abduction of the father was part of a further extortion attempt was illogical or irrational.
It is not enough to constitute jurisdictional error that the appellant, or even the Court, disagrees with the relevant finding. The fact that the Court would not be disposed to draw the inference that was drawn by the Authority does not necessarily mean that, in doing so, the Authority committed jurisdictional error. For the relevant finding to involve jurisdictional error it is necessary for the Court to conclude that the finding made by the Authority was not one that a reasonable decision-maker could make on the material before it. Such a conclusion may be available if the decision was truly not open on the evidence or if there was no logical connection between the evidence and the inference or conclusion drawn.
As I have mentioned, the appellant in his submissions placed considerable emphasis on the Authority’s summary of the relevant country information at [37] of its reasons and, in particular, the reference to the USDOS 2016 Report covering events in Sri Lanka in 2015, and the activities of paramilitary groups involved in abducting people with LTTE connections.
However, it is necessary to also refer to the first sentence of [37] of the Authority’s reasons which notes that DFAT was aware of credible reports of paramilitary groups, including the Karuna group, being involved in criminal activities (but noting that such reports were difficult to verify). So there was country information before the Authority suggesting that the Karuna group had been involved in criminal activities. That the Karuna group was involved in criminal activities, including extortion, found support in the appellant’s own claims and the Authority’s acceptance that in 2007 the appellant’s father was a victim of extortion by the Karuna group. The Authority’s reasoning was in essence that, having engaged in such a criminal enterprise in relation to the appellant’s father in 2007, it is likely that the subsequent abduction was similarly motivated.
In his submissions the appellant emphasised that the 2007 incident did not involve his father being abducted by the Karuna group. It is clear from the Authority’s reasons that it was mindful that while the first incident did not involve an abduction, the second incident did. I do not think this provides a sufficient basis for concluding that the circumstances of the 2007 incident, and the motivation behind it, were so different as to preclude the Authority from inferring that the subsequent abduction was a part of a further extortion attempt even if it may have involved a different modus operandi.
In my view the relevant finding was open on the material before the Authority and was not the product of any illogical or irrational process of reasoning.
In the result, I am not persuaded that the proposed ground of appeal, even if leave were granted to raise it, can succeed. On that basis I do not propose to grant the appellant leave to amend his notice of appeal. In the circumstances, the notice of appeal must be dismissed with costs.
It is not necessary to determine the correctness of the Minister’s contention that the relevant finding, even if it was illogical or irrational, could not have affected the outcome of the Authority’s review. However, I shall briefly explain why, were it necessary to decide the question, I would not accept the Minister’s contention.
The Minister’s submission was, in short, that any illogicality in the finding that the Karuna group’s abduction of the appellant’s father could not have affected the outcome of the application for review and, in particular, that the appellant could not show that a different outcome was a realistic possibility had the relevant finding not been made. In support of this submission the Minister relies Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4], [45] - [46] per Bell, Gageler and Keane JJ.
The difficulty with the Minister’s submission is that it draws upon various conclusions, in particular that found at [39] of the Authority’s reasons, that are informed by various findings including that the Karuna group’s abduction of the appellant’s father was another attempt at extorting money and which was not motivated by the father’s perceived LTTE connections.
I do not think it can be inferred that, had the Authority accepted that the father was abducted by the Karuna group because it perceived that the father had LTTE connections, the Authority would have come to the same conclusion it expressed in [40]. In this regard, I note that the Authority accepted that the Karuna group also attempted to abduct the appellant in June 2011. The Authority did not make any finding as to the motivation behind the Karuna group’s attempt to abduct the appellant. Had the Authority accepted that the father was abducted by the Karuna group because of what it perceived to be his LTTE connections, then it may well have concluded that the same group’s unsuccessful attempt to kidnap the appellant was similarly motivated. In those circumstances I do not accept the Minister’s submission that the appellant could not show that the alleged error in the Authority’s process of reasoning could have affected the decision: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [28] - [31] per Kiefel CJ, Gageler and Keane JJ.
DISPOSITION
There will be orders:
(a)refusing the appellant leave to file an amended notice of appeal;
(b)dismissing the appeal;
(c)ordering the appellant to pay the Minister’s costs of the appeal.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 28 January 2021
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