AVL18 v Minister for Home Affairs
[2018] FCCA 3946
•23 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVL18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3946 |
| Catchwords: MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 5J, 36(2)(a), 473CA, 473CB, 473CB(1), 473DA(1), 473DC, 473DD, 473GA, 473GB, 476(1), Pt.7AA |
| Cases cited: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 |
| Applicant: | AVL18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 102 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 23 November 2018 |
| Date of Last Submission: | 23 November 2018 |
| Delivered at: | Perth |
| Delivered on: | 23 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms M. Jackson |
| Solicitors for the Respondents: | Australian Government Solicitor |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The applicant’s application is dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 102 of 2018
| AVL18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
Introduction
The applicant is a Sri Lankan citizen. He was born in Trincomalee, Eastern Province, Sri Lanka: Court Book (“CB”) 85.
On 17 April 2013, he arrived at Christmas Island as an authorised maritime arrival: CB 59, 109.
On 12 May 2017, the applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”): CB 22-58.
The applicant provided a statutory declaration with his SHEV application in which he set out his claims to fear harm on the basis of his Tamil ethnicity and imputed association with the Liberation Tigers of Tamil Eelam (the “LTTE”): CB 59-63. He claimed that he had experienced threats and harassments from the Criminal Investigation Department (the “CID”), the LTTE and the Karuna Group, and on one occasion in 2010 he had been detained and tortured by the CID. The applicant also claimed in his protection visa application that his father had lost a leg in Jaffna in 2008 during the war, and the applicant provided a photograph to that effect: CB 94.
The applicant’s SHEV application was refused by a Ministerial delegate on 22 August 2017: CB 114-132. The delegate did not accept the applicant's claims of being harassed and threatened by the Sri Lankan authorities or any paramilitary groups on the basis of imputed political opinion and further was not satisfied that the applicant had a profile that would indicate that he would face a real chance of serious harm or a real risk of significant harm if returned to Sri Lanka.
The matter was then referred to the Immigration Assessment Authority (the “IAA”) on 25 August 2017: CB 139.
On 19 January 2018 the IAA affirmed the delegate’s decision: CB 157-173.
By application filed in this Court on 23 February 2018, the applicant seeks judicial review of the IAA’s decision.
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the IAA.
The Court had before it a Court Book and written submissions from the Minister. No written submissions were provided by the applicant. The applicant appeared in person with the assistance of an interpreter. The Court thanks the interpreter for her considerable assistance.
The Minister was represented by Ms Jackson. The Court thanks Ms Jackson for the assistance she provided the applicant during the hearing of this matter and for the clarity of her submissions – both written and oral. Her conduct during this hearing was what one expects of a model litigant and others would do well to emulate her approach to litigation involving a non-represented litigant with a poor grasp of the English language.
The IAA’s Decision
The applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. Further, he is not an “excluded fast track review applicant” as that term is defined in the Act. This is important in relation to allegations of jurisdictional error as the Act limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”, in respect of each fast track reviewable decision referred to the IAA under s.473CA. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time his or her decision was made. The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act.
An applicant may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are contained in s.473DD of the Act which provides:
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.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The Court notes the Minister’s written summary of the IAA’s decision in his written submissions at paragraphs 8 to 10. The Court has crossed-checked all references and adopts the summary provided by the Minister in those submissions unless otherwise elaborated upon below.
The IAA considered the materials referred by the Secretary under s.473CB of the Act. No further information was obtained or received ([3] and [4]).
The IAA then summarised (at [5]) the applicant’s claims as follows:
·The applicant is a 35 year old Tamil, Christian male who was born and lived all his life in Trincomalee District in Eastern Province, Sri Lanka.
·During the ceasefire in the civil conflict the applicant worked as an auto-rickshaw taxi driver. The Liberation Tigers of Tamil Eelam (LTTE) came to the applicant's village and announced that all rickshaw drivers must provide them with transport for a large festival. The applicant was forced to drive LTTE members around in his auto-rickshaw for the two days of the festival. He was captured on video film doing this by Police CID. Because of this the applicant is suspected of being an LTTE supporter.
·The applicant was never a member or supporter of the LTTE.
·In 2008, in Jaffna, the applicant's father was injured in shelling during the conflict and his leg was amputated at the knee. Because of this injury the authorities suspect the father of having been an LTTE member and that the applicant is therefore also an LTTE supporter.
·After the war, Karuna Group and Pillayan Group each began, separately, coming to the applicant's house at night time. They accused the applicant of being an LTTE supporter because of his father's wartime injury and his own involvement, showing him as proof the video of him driving the LTTE around the procession. Each group demanded money from the applicant on threats to report him to authorities as LTTE or else he should join them. He always refused and then he and his mother and father were beaten and tortured.
·The CID saw these groups visiting his house and they came to the house at night and accused the applicant of being a supporter of the LTTE, the Karuna Group and Pillayan Group. The CID tried to extort money from the applicant; when he refused they assaulted him and kicked his father.
·The LTTE saw the CID visiting the applicant's house and they came to his house and accused him of being part of the CID.
·The applicant reported all these visits and harassments to the authorities but nothing was done.
·In 2010 the CID took the applicant from his home in the night time and held him in one of their camps. He was tortured and beaten and interrogated for being a member of Karuna Group or Pillayan group. They demanded money from the applicant. After four days he was released to go home.
·Because of the continuing harassment and torture from these groups and CID, the applicant's mother arranged his journey to Australia. He left home on 8 March 2013 and boarded a boat from Batticaloa, without a passport. He arrived in Australia on 17 April 2013.
·After his arrival in Australia, Karuna Group, Pillayan Group, LTTE and CID visited the applicant's parents asked for his whereabouts, demanded money and tortured his father again. They continue to do so.
·Because he is a Tamil, and from Eastern Province, and has been imputed as an LTTE supporter due to his father's leg injury and his transportation provided to the LTTE, he is in danger of harm in Sri Lanka from the authorities, in particular the CID, and also the Karuna Group and Pillayan Group and will be murdered or assaulted and tortured if he is returned to Sri Lanka.
The Court has cross-checked this summary with the applicant’s application for a protection visa and finds that this is an accurate summary of the applicant’s claims.
Based on the applicant's evidence, his interview and the documents produced, the IAA accepted that the applicant is a 35 year old Tamil male from the relevant district in the eastern province of Sri Lanka (at [8]).
The IAA also accepted that Sri Lanka is the receiving country for the purpose of this review.
The IAA then noted (at [9]) that the applicant's evidence did not specify exactly when he drove LTTE members around a Tamil procession for the Bunkutamul festival organised by LTTE. The IAA noted that the applicant had claimed that this occurred approximately "within two or three months of the peacetime" happening and that after that there was war and then there was peace and then Karuna and Pillayan factions separated.
The IAA then referenced country information, noting that that information indicates that increasing violations of the formal ceasefire, which was declared in February 2002, had escalated to a "low-intensity war" by May 2006; this increasingly escalated thereafter, until the SLA won back control of the Eastern Province after defeating the LTTE in 2007, with the full war finally ending in May 2009. Further, the Karuna faction had split from the LTTE in April 2004 and that then split into the Karuna and Pillayan Groups in 2007.
From the above, the IAA concluded that the procession relevant to the applicant’s claims had occurred approximately in the early period of the formal ceasefire, approximately mid-2002.
The IAA accepted the applicant's evidence that he was never a supporter or member of the LTTE (at [10]).
However, the IAA found that the applicant's only involvement with LTTE was extremely low-level, being the forced provision of taxi transport for two days in the ceasefire period in mid-2002 (at [9]-[10]).
The IAA was willing to accept that the processions in which the applicant was present were monitored or recorded by the authorities (at [11]).
The IAA noted that there was no evidence before it that, after the resumption of hostilities or at the end of the war, the authorities took any interest in the applicant due to any imputed LTTE support arising from his provision of taxi transport to LTTE members.
The IAA expressed concern about the timing of the applicant's claimed interrogation, finding that if the applicant was genuinely suspected of being an LTTE supporter, he would have been identified as such by the authorities long before 2010: [12]. In this regard, the IAA relied extensively on country information as to the hostilities in Sri Lanka.
Additionally, the IAA noted (at [13]) that the Karuna Group had sided with the Government and reportedly assisted the SLA in the war against the LTTE, and by 2009 both Karuna and Pillayan, were officially established in mainstream politics - their TMVP party won majority seats in the Eastern Regional Council elections of 2008, Pillayan became Chief Minister of Eastern Province and Karuna was appointed Minister of National Reconciliation and Integration in the national Rajapaksa government.
From this the IAA concluded that it is not plausible that in 2010 the CID would violently interrogate the applicant about whether he was a supporter of either of these groups. Further, if, as claimed, the CID had evidence of Karuna and Pillayan Groups regularly visiting his house from having witnessed this, it was not logical that CID would use a video from 2002, before the existence of these groups, as a basis for interrogation about their visits.
The IAA found this whole account to be implausible.
The IAA did not accept that the applicant was detained and tortured by the CID for four days in 2010 on account of a video of him driving LTTE members during the ceasefire.
Further, the IAA did not accept that the authorities had any interest in the applicant as being associated with the LTTE at all. Nor do it accept that CID interrogated the applicant about or were concerned about, any support of the Karuna or Pillayan Groups. Nor did it accept that the CID tried to extort money from the applicant.
The IAA noted that it had found the applicant's account of the claimed detention not credible, and noted further his statement that he did not pay any money and yet was apparently released to go home.
The IAA noted that the SHEV interview audio recording indicates that the applicant showed to the delegate a scar on his back. The details of that scar were not before the IAA, however, the IAA noted that in any event it had not found the applicant’s primary evidence on this claim credible at all, and did not in the circumstances accept that any such scar was attributable to the claimed events.
The IAA found that the applicant had no family links to the LTTE, and that the vagueness of evidence about his father losing his leg raised credibility concerns.
The IAA placed no weight on two photographs provided by the applicant of an older man he claimed was his father with an amputated leg due to anomalies in the photographs. The IAA did not accept that the authorities had any suspicion of, or any other adverse interest in, the applicant's father as a former LTTE member or supporter (at [14]-[15]).
The IAA did not accept that the CID gave the video of the procession to the Karuna or Pillayan groups, or that the applicant's parents still continue to be visited and harassed by the groups looking for him (at [16]).
The IAA noted at [17] as follows:
As noted above the Karuna and Pillayan political parties are now part of formal mainstream governance in Sri Lanka. DFAT reported in 2015 that former Tamil military groups had renounced paramilitary activities but there were reports that some had remained active in criminal activities. In 2017 DFAT reported on the continuing and greatly improved security situation in Sri Lanka and that police and government agencies exercise effective control throughout the country; and further I note the significant absence of any reference to any reported security issues involving former paramilitary criminal elements in the 2017 report. In light of my findings above and given their move into the mainstream and renunciation of paramilitary activities, I find that the chance the applicant would face violence or other threat from these groups is remote. I find that there would not be a real chance that the applicant would suffer serious harm on return to Sri Lanka from the Karuna or Pillayan groups.
Further, the IAA did not accept that the CID were observing the applicant's house for the activities of any groups, that the CID continually questioned the applicant about those groups, or the LTTE continued to visit his house following the end of the war (at [18]-[19]). In light of the above findings the IAA did not accept that the applicant reported all those visits and harassments to the authorities as claimed (at [20]).
Having regard to relevant country information and reports, the IAA was not satisfied that the applicant faced a real chance of suffering harm because of any imputation of LTTE support arising from himself or any family member or because of his ethnicity or status as a Tamil male from Eastern Province or as a target for extortion (at [21]-[24]).
The IAA accepted that the applicant departed Sri Lanka illegally and that he would be investigated and charged by the police under the Immigrants and Emigrants Act 1949 (I&E Act). The IAA found the applicant may be detained and questioned at the airport, fined for breaching the I&E Act and may face a brief period in detention while waiting for the next available Magistrate if not taken to Court straight away. However, if the applicant faced a brief period in detention, the IAA did not consider that it would constitute serious harm for the applicant. Further, the IAA did not consider any likely questioning of the applicant by the authorities at the airport on arrival or the imposition of a fine to constitute serious harm (at [25]-[29]). It also found that any investigation, prosecution and punishment or the applicant under the I&E Act would constitute a law of general application, which did not amount to persecution for the purposes of s.5J(1) of the Act (at [30]).
The IAA found that the applicant would also not face harm as a failed asylum seeker (at [31]) nor on the basis of his religious affiliation and identity (at [32]).
The IAA concluded that there was not a real chance that the applicant would face a real chance of harm and therefore he did not meet the criteria in s.36(2)(a) of the Act (at [33]).
In relation to the complementary protection criterion, the IAA largely relied on its earlier findings, and concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia, there was a real risk that the applicant would suffer significant harm (at [39]).
Proceedings in this Court
The applicant relies on various grounds of review in his application to this Court:
1.Jurisdictional error.
2.Bias based on conscious or unconscious prejudice by ignoring relevant materials.
3. Identifying a wrong issue or a wrong question.
In his supporting affidavit affirmed 23 February 2018, the applicant attached a copy of the IAA’s decision and a document containing the following statements (without correction):
1)I am the Applicant for a Juridical Review of the decision made by the Immigration Assessment Authority in regard to my application for a Protection Visa on the 19th of January 2018.
2)My application is made on the basis of Jurisdictional Error made by the Immigration Assessment Authority by exceeding or be failing to exercise its proper jurisdiction and giving rise to the remedies of mandamus or prohibition.
3)In this regard reference is made to paragraphs 5, 10, 15 and 19 of the decision made by the Immigration Assessment Authority on the 19th of January 2018.
4)The Immigration Assessment Authority had failed to examine in a proper manner the country situation pertaining to the Sri Lankan Tamils in that country.
5)I have, therefore, a well-founded fear of, being arrested and detained in Sri Lanka without a proper recourse to the courts of law under the Prevention of Terrorism Act 1978, Sri Lanka.
Arguably, 3 and 4 in the affidavit might be seen as further grounds of review. Counsel for the Minister proceeded on that basis, as does the Court below.
The applicant’s grounds of review are vague. Despite being given an opportunity to provide particulars in relation to his grounds for judicial review, the applicant did not provide any particulars or further written submissions.
This puts the respondent at a disadvantage as it makes it difficult for the respondent to gage what, precisely, the applicant thinks the AAT “did wrong”.
It is not disputed that a failure to particularise grounds can result in each of the grounds being dismissed. However, the Court does note the decision of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8], where His Honour commented that the consequences of a failure to particularise will depend upon the circumstances. His Honour also observed that it will rarely be appropriate to simply dismiss an appeal ground in a migration case for lack of particularisation where the applicant seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. His Honour found that, in such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground (at [9]).
This Court adopts this approach. Noting that the applicant is not legally represented and this case relates to protections claims, the Court asked that the applicant to explain what he believes the AAT “did wrong”. In this context, the Court explained to the applicant the possible categories of jurisdictional error.
The Court also explained that the Court could not engage in merits review of the Tribunal’s decision.
The applicant was asked to outline orally what, in his opinion, he felt the IAA “did wrong”. The applicant did so, as discussed below.
The applicant began with a discussion of his ground 2. Ground 1 was considered last in oral submissions, and the Court will address the applicant’s submissions in that order.
Ground 2
Bias based on conscious or unconscious prejudice by ignoring relevant material.
In relation to ground 2, the Minister contended in written submissions at paragraphs 15, 16 and 17, as follows:
15.It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven.
16.There is nothing in the IAA’s decision which suggest that there was any bias on its part. Neither is there any basis for a reasonable apprehension of bias, the test for which is whether a fair-minded lay observer, who was properly informed as to the nature of the decision to be made, the matters in issue and the conduct complained of, might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [85]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].
17.Insofar as the applicant alleges actual bias, there is nothing in the IAA’s decision that indicates a closed mind such that this claim can be sustained. Nothing the IAA said indicates it was not open to persuasion. The IAA accepted some of the applicant’s claims. However, it also found some of the claims to be implausible or not credible. To prove actual bias on the part of the IAA requires evidence of a state of mind such that the IAA was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Gleeson CJ and Gummow J at [69].
The applicant was asked to comment. From what was said, it appears that the applicant’s main concern in relation to this ground was that the IAA used Google for the purposes of accessing the country information, and arguably, that the country information was unreliable.
The Court has reviewed the material before it. There is no indication that Google was used to retrieve country information. In any event, even if it was, there is no indication that the country information that was ultimately accessed was unreliable.
The Court infers from what was said by the applicant in Court that the applicant is concerned that the IAA considered or accessed irrelevant material and/or failed to consider relevant material. The Court admits, however, that the concern was not entirely clear, but finds as follows in relation to that issue.
It is clear that country information relevant to the current situation confronting young Tamil males in Sri Lanka was, indeed, central to the IAA’s decision. The question this Court needs to ask, however, is whether or not there was an error in relation to the way that information was used.
The Court notes, in particular, the decision in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, in which the Full Court said (at [11]):
…There can be no objection in principle to the tribunal, in that context, relying on country information. The weight that it gives to such information is a matter for the tribunal itself, as part of its fact-finding function. Such information as the tribunal obtains for itself is not restricted to guidance. It may be used to assess the credibility of a claim of a well-founded fear of persecution. The question of the accuracy of the information is one for the tribunal, not for the court. If the court were to make its own assessment of the truth of country information, it would be engaging in merits review, and the court does not have the power to do that.
The Court sees no error here in relation to either the way in which the country information was obtained or how that country information was used.
It is noted that all of the country information relied on pertained to the situation in Sri Lanka and references authorities that are highly regarded both by this Court and others.
Further, although given an opportunity to do so, the applicant did not specifically identify any incident of either actual or apprehended bias in the decision.
An allegation of actual bias requires proof. Apprehended bias must be firmly established.
The applicant has not explained why he thinks that the IAA closed its mind towards his case or was otherwise incapable of changing its view. Nor has he detailed why or how a fair-minded and informed observer might apprehend that the IAA might not have brought an impartial mind to bear on its decision.
There is no indication that the IAA member was biased, actually or apparently, against the applicant, or that the member approached the task of review with a preconceived view as to the outcome.
Ground 2, accordingly, fails.
Ground 3
Identifying a wrong issue on a wrong question.
In relation to this ground the Minister submitted in written submissions, as follows:
18.The applicant has not particularised the ‘issue’ or ‘question’ he contends was wrongly identified.
19.The applicant has provided no particulars of any facts considered by the IAA he says were irrelevant, or what relevant facts the IAA failed to consider. Arguments based on the use by the IAA of relevant or irrelevant considerations are concerned essentially with the proper application of the law, not with the process of making particular findings of fact: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [74]; Elara v Assistant Minister for Immigration and Border Protection [2017] FCA 1565 at [43], citing SZNGI v Minister for Immigration & Citizenship [2010] FCA 154 at [22].
20.The IAA accurately set out the applicant’s claims for protection at [5] and considered those claims against independent country information and the applicant’s evidence and its findings were open on the material before it. The IAA’s credibility findings flowed logically from its assessment of the material before it and provides a sound basis to support its decision: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [59]-[61].
21.The Tribunal’s ultimate finding that the applicant was not entitled to protection was based on its assessment of the applicant’s credibility, and its assessment of independent country information about the situation in Sri Lanka. Both of those matters are within the fact finding purview of the Tribunal: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] and NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11].
22.In this case the IAA properly had regard to the criteria in s 36(2)(a) and s 36(2)(aa) of the Act, as it was required to in reviewing the delegate’s decision. In considering whether the applicant faced a relevant risk of harm as prescribed in those sections, it accepted his low level involvement with the LTTE during the ceasefire, but found that this did not give rise to a real chance of future harm. It did not accept that the applicant or his family had any ongoing harassment from the CID, the LTTE or other groups. In this case, like most cases, those past events were relevant to the Tribunal’s consideration about what was likely to occur in the future: see, eg, Yusuf at [75]; citing Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575.
23.The Minister contends that the applicant has not made out this ground.
The applicant was again asked to comment. Although the response was not entirely clear, it seemed that the applicant was suggesting that the IAA’s conclusions in relation to his father’s leg, and its amputation specifically, were illogical, irrational or arbitrary.
To the extent that the applicant is claiming that the decision is unreasonable, illogical or irrational, the Court is guided by the principles outlined in Minister for Immigration v SZMDS (2010) 240 CLR 611 (SZMDS) at [131], as follows:
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.
The Court also notes the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26]–[28], as follows:
[26] The rationality required by “the rules of reason” is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions. Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account.
[27] In Wednesbury Corporation, Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:
“If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.”
That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred.
[28] Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.” In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
(Citations removed)
Having reviewed the IAA’s decision, this Court does not find that the decision can be seen to be unreasonable, illogical or irrational, or that any jurisdictional error occurred.
The IAA’s findings, many of them findings of fact and in relation to credibility, were open to the IAA on the evidence, particularly in this context, specific to this claim as it relates to the evidence of the applicant’s father and the amputation of his leg.
The IAA reviewed the photographs in question, and the evidence as a whole from the applicant, and, contextually, within this particular fact situation, found the applicant to be lacking credibility and the photographs to be less than convincing. Little evidence was, accordingly, attached to the photographic evidence and an adverse credibility finding was ultimately made. The applicant clearly does not agree with the IAA’s findings in this regard, but it cannot be said that the IAA’s findings were not open to it. Nor can it be said that they were, in any way, irrational.
Lest the applicant be seen to be suggesting that the IAA failed to consider his claims, a review of the decision shows that the IAA discharged its function in the way it was required to do by pt.7AA of the Act.
Taking into account the expression “a well-founded fear of persecution” as that is defined in s.5J of the Act, and, further, the criteria for complementary protection, it is clear on the evidence here that the IAA did consider each of the applicant’s claims for protection.
The IAA’s decision can be seen to have had an intelligible and rational basis. The analysis provided is perhaps best described as forensic. The reasons provided are extensive, clear and clearly adequate.
Nor can it be seen that the photographs in question needed to be put to the applicant for comment. Having reviewed the requirements of s.473DC of the Act, it cannot be said that new information arose here or that any discretion should have been considered. Procedural fairness was provided in this context, noting, of course, that this particular context is that of a rather strict piece of legislation in relation to a fast-tracked applicant.
Affidavit grounds
3. In this regard reference is made to paragraphs 5, 10, 15 and 19 of the decision made by the Immigration Assessment Authority on the 19th of January 2018.
4. The Immigration Assessment Authority had failed to examine in a proper manner the country situation pertaining to the Sri Lankan Tamils in that country.
In relation to the grounds of review that are, arguably, raised in the affidavit evidence provided by the applicant, the Court notes the Minister’s submissions at paragraphs 24 and 25, as follows:
24.Whilst not pleaded as grounds of review, the applicant’s statement attached to his affidavit makes reference to 4 paragraphs in the IAA’s decision at paragraph 3 of his statement. The Minister submits that none of these paragraphs disclose any jurisdictional error on the part of the IAA:
24.1.Paragraph 5 of the decision accurately summarises the applicant’s claims for protection.
24.2.Paragraph 10 of the decision sets out the applicant’s evidence about his involvement with the LTTE, which the IAA accepted. There is nothing about this factual finding which discloses any error.
24.3.Paragraph 15 of the decision sets out the IAA’s concerns about the credibility of photographs provided by the applicant and why it did not accept the applicant’s claims about his father. The weight attached to that piece of evidence was a matter for the IAA and it is permitted to reach its own conclusions concerning the documents and material before it, including making findings about document authenticity: BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49 at [69]-[72]. In this regard, the Minister notes that the IAA had the same concerns about the photograph as the delegate: see CB 122.
24.4.Paragraph 19 of the decision cites country information about the status of the LTTE at the end of the war. In this paragraph the IAA rejects the applicant’s claim that LTTE members continued to visit his house, or that he was being questioned by the CID about those visits. This finding of fact had a logical and probative basis, based on both country information and the IAA’s earlier conclusion about the applicant’s profile. There is no error apparent in this aspect of the reasons.
25.Paragraph 4 of the applicant’s statement annexed to his affidavit alleges that the IAA failed to examine the country information pertaining the Sri Lankan Tamils. The IAA set out in detail relevant country information and referred to various international reports about the situation in Sri Lanka. It then assessed the applicant’s claims in light of that country information and concluded that there was not a real chance that the applicant would face any harm upon returning to Sri Lanka: see [21]-[31]. In essence the IAA considered, and rejected, the applicant’s claim to fear harm on the basis of his Tamil ethnicity.
When asked to comment, the applicant again seemed to suggest that he disagreed with the IAA’s findings that he had not been taken away.
Although not entirely clear, what the applicant seemed to be asking the Court to do is undertake a merits review, in the hope that this Court will ultimately come to a different conclusion than that reached by the IAA. In effect, the applicant would like the Court to review the evidence that was before it, find that he was, in fact, taken away, as referenced, and, ultimately, give him the protection visa that he seeks.
This Court cannot undertake a review of that sort: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6. Accordingly, the Court does not find any jurisdictional error in relation to the causes and concerns raised in the affidavit evidence.
Ground 1
Ground 1 simply states jurisdictional error. When the applicant was asked about ground 1, he indicated that he simply wished to repeat what he has said above in relation to his concerns and he highlighted, in particular, concerns about the use of the country information. The applicant was particularly concerned that the country information in question was not entirely reliable or accurate as, in his words, much of it would have been from the government itself.
In this context, the Court notes the decision of Judge Wilson in DVI17 v Minister for Immigration & Anor [2018] FCCA 241 at [39] and makes the following observations:
a)the accuracy of country information is a matter for the IAA, not a Court, because a Court would be engaging in an impermissible merits review if it made its own assessment of country information;
b)the choice and interpretation of country information is a factual matter for the IAA alone;
c)the Court cannot review the merits of the IAA’s decision in this regard; and
d)there is no error of law in the IAA making a wrong finding of fact.
The Court sees no jurisdictional error here in relation to ground 1, and the specific use of the country information by the IAA.
Ground 1, accordingly, fails.
Conclusion
For the reasons outlined above, the Court finds that there is no jurisdictional error demonstrated by the grounds of review as articulated or otherwise apparent in the IAA’s decision.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 24 January 2019
0
15
2