Awv18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 594
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWV18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 594
File number(s): PEG 179 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 27 July 2022 Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Sri Lanka – involvement with LTTE – family member involvement with LTTE – whether reasoning vitiated by lack of intelligible justification or informed by implausible reasoning – whether constructive failure to exercise jurisdiction – whether failure to ask “what if I am wrong” – whether jurisdictional error.
WORDS AND PHRASES – “captain”
Legislation: Migration Act 1958 (Cth) ss 36, 473CA, 473CC, 473DC, 473DD, 473EA, 476
Immigrants and Emigrants Act 1948 (Sri Lanka)
Cases cited: AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
DBX16 v Minister for Immigration and Border Protection [2021] FCA 238
Dhiman v Minister for Immigration & Multicultural Affairs [2000] FCA 2221
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 367; (2013) 115 ALD 248
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485; (2010) 115 ALD 294
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441
Republic of Nauru v WET040 (No 2) [2018] HCA 60; (2018) 93 ALJR 102; (2018) 362 ALR 235
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1580
Material: Macquarie Dictionary (Seventh Edition) (Sydney: Macquarie Dictionary Publishers, 2017)
The Shorter Oxford English Dictionary on Historical Principles (Third Edition) (Oxford: Clarendon Press, 1983)Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 28 July 2021 Place: Perth Counsel for the Applicants: Mr M Crowley Solicitor for the Applicants: AUM Legal Counsel for the First Respondent: Mr B Kaplan Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 179 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWV18
First Applicant
AWW18
Second Applicant
AWX18 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
27 JULY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 21 June 2020, as amended by an amended originating application filed 2 September 2020, and as further amended at hearing on 28 July 2021, be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application for judicial review filed by the applicants on 21 June 2020 (“Judicial Review Application”) under s 476A of the Migration Act 1958 (Cth) (“Migration Act”), and amended by an amended Judicial Review Application filed on 2 September 2020 (“Amended Judicial Review Application”). The Judicial Review Application is made in respect of a decision of the Immigration Assessment Authority (“Authority”) handed down on 27 May 2020 (“Second Authority Decision”). The Authority affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively), of the first respondent, then the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant the applicants a Safe Haven Enterprise visa (subclass 790) visa (“SHE Visa”).
An earlier Authority decision (“First Authority Decision”) had been remitted to the Authority for redetermination according to law: see AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365.
In determining the matter the Court has had regard to the materials filed by the parties, including the following:
(a)the Court Book (“CB”) which was marked as Exhibit 1 at hearing;
(b)the applicants’ Outline of Submissions filed 17 May 2021 (“Applicant’s Submissions”);
(c)the affidavit of the first applicant (“AVW18”) affirmed 21 May 2021;
(d)the Minister’s Outline of Submissions filed 27 July 2021; and
(e)the transcript of the hearing (“Transcript”).
BACKGROUND
The first applicant, AWV18, is a citizen of Sri Lanka who arrived on Christmas Island as an unauthorised maritime arrival on 13 April 2013 together with his wife, AWW18, and three daughters being AWX18, AWY18 and AWZ18 (the second to fifth applicants respectively). The sixth applicant, AXA18, was born in Australia in September 2015.
AWV18 made the SHE Visa application on 25 November 2016. The second to sixth applicants were included in the Amended Judicial Review Application as members of AWV18’s family unit, and did not raise their own claims for protection.
The Delegate’s Decision on 12 June 2017 was to refuse to grant the applicants SHE Visas.
On 19 June 2017 the Delegate’s Decision was referred to the Authority for review under s 473CA of the Migration Act.
Following remitter of the First Authority Decision: see [2] above, the Second Authority Decision on 27 May 2020 affirmed the Delegate’s Decision to refuse to grant the applicants SHE Visas.
AMENDED JUDICIAL REVIEW APPLICATION
There are three grounds in the Amended Judicial Review Application set out at [11] (Ground 1A), [33] (Ground 2A) and [42] (Ground 3A) below.
Ground 1A
The Court notes that AWV18 addressed Ground 2A before Ground 1A. The Court has dealt with the grounds in the order that they appear in the Amended Judicial Review Application.
Ground 1A is as follows:
1AThe decision of the Immigration Assessment Authority (IAA) to affirm the fast track reviewable decision under section 473CC(1)(a) of the Migration Act 1958 (Cth) was vitiated by reasoning going to an important integer of the applicants’ claims, that 'Brother M’ was a member of the LTTE, which lacked an intelligible justification or was informed by ‘implausibility’ reasoning premised upon matters of conjecture of speculation.
Particulars
1A1The IAA found that ‘[o]verall the claims in regard to Brother M and LTTE links contain inconsistencies and implausibilities that are not overcome by the documentation provided or the explanations provided as to variations in accounts and the applicants have failed to satisfy me that Brother M was a member of the LTTE’ [62];
1A2The IAA accepted that there was photographic evidence ‘support[ing] the claim’ that 'Brother M’ was an LTTE operative because he was there depicted in ‘combat uniform’ and noted the delegate’s finding to that effect, but did not accept the claim because of the balance of its reasoning as to ‘Brother M’ [61], [64];
1A3 The IAA thought that wearing of a ‘combat uniform’ itself was inconsistent with being an LTTE spy [53];
1A4The IAA thought it ‘difficult to accept' that ‘Brother M’ would have been able to operate covertly in Colombo as, in effect, an LTTE spy, because of contemporaneous ‘stringent security measures to identify and detain LTTE members, particularly in Colombo’ [45];
1A5 The IAA thought it ‘difficult to accept’ that ‘Brother M’ would have been able to ‘live and work openly in Colombo until 2008’ and ‘keep his involvement [with the LTTE] secret from his extended family, with whom he shared a residence in Colombo” because of his ‘senior rank’ of ‘captain' [57];
1A.6The IAA thought it ‘incompatible’ with the proposition that ‘Brother M’ was a spy if he was, as claimed, photographed in an LTTE uniform in a public place [53], [62];
1A7 The IAA thought an apparent ‘obituary’ dating the death of ‘Brother M’ on 20 January 2009 undermined the claim that the first and second applicant did not know about ‘Brother M’s’ death for a number of years;
1A8 The IAA thought that the claim that ‘Brother M’ was an LTTE spy was implausible because the authorities did not question the applicants’ family for 1 year after his (accepted) abduction [59], [60].
Applicants’ submissions
The applicants’ submissions were as follows:
(a)as to particular 1A.3 of amended ground 1A, there was simply no foundation in the evidence to conclude that the status of LTTE spy was in any way inconsistent with being an LTTE spy. The undisclosed premises that Brother M was an LTTE spy at the time of the photo and that LTTE intelligence officers are not issued with LTTE uniforms simply do not follow. First, the Authority itself had observed that the photograph was undated. It was not the applicants’ claim that AWV18 was a spy at the time of the photo. They did not know and did not say they knew. Second, and in any event, there was no evidentiary foundation for the proposition that LTTE spies do not have uniforms. Such a conclusion is counterintuitive for a paramilitary organisation like the LTTE;
(b)the same can be said for particular 1A.6. In the absence of any evidence about when the photograph was taken, there was nothing “incompatible”– even accepting the balance of the Authority’s reasons – with the existence of a photograph of Brother M in military uniform and the role of a spy. It could simply have been taken earlier;
(c)as to particulars 1A.4 and 1A.5 of amended ground 1A, in the absence of any evidence about what kind of controls were in place in Colombo it did not follow that a spy would invariably or likely be detected. At best, the material suggested nothing more than that there were reporting requirements (which corroborated the applicants’ claims and was accepted) and that there were road stops. That would be easily avoidable. In any event, it would be to deny the reality of espionage at all to suggest, as the corollary of the Authority’s reasons require, that spying could not have occurred in Colombo at all. It is a matter of historical reality, for example, that LTTE attacks did occur in Colombo, and on targeted military sites in and around Colombo in 2009. (See The Australian, 23 February 2009, ‘Kamikaze raid shows the Tamil Tigers have not been tamed’, 091354-25837,00.html) This must have required intelligence;
(d)further, there was simply no evidence of exactly how senior the rank of “captain” in the LTTE was. If it was to be analogised to the Anglophone countries, “captain” in the army is a very junior army officer, whereas a navy captain is very senior. But more fundamentally, the corollary must be that it would be more likely that the LTTE would send a very junior operative to spy in the enemy’s capital. This is counterintuitive; and
(e)likewise particular 1A.8 of amended ground 1A cannot follow in the absence of evidence about whether Brother M was ever in custody for a substantial period, or was not killed, or did not have a believable ‘cover’ in anticipation of being captured or was persuaded to disclose his role as a spy at all.
Minister’s Submissions
The Minister’s submissions were as follows:
(a)in support of ground 1A, the applicants identify several aspects of the Authority’s reasoning with which they take issue, although it appears that not every impugned finding forms a part of their pleaded case: Submissions are made at [8.4] and [8.7] of the Applicants’ Submissions which the applicants expressly acknowledge go nowhere, and they should be ignored;
(b)particular 1A.4 of Ground 1A gives rise to the first aspect of the Second Authority Decision that the applicants challenge and is at CB 792 at [45] (footnotes omitted):
It is claimed that for some period up to 2008 Brother M was a member of the LTTE while living in Colombo, and significantly that he was part of LTTE intelligence. Following the breakdown of peace talks and the end of the ceasefire in 2006 Sri Lankan security agencies adopted stringent security measures to identify and detain LTTE members, particularly in Colombo. It is difficult to accept that Brother M would have been able to continue living and working openly in Colombo if he was involved with the LTTE as claimed.
(c)the short point made by the Authority was that it was doubtful that Brother M could be an active LTTE intelligence operative, living and working in that capacity openly in Colombo, in circumstances where the Sri Lankan authorities had, following the ceasefire in 2006 and up to the end of the civil war in 2009, implemented a strict regime of identifying and detaining persons of Tamil ethnicity (which included those who were members of, or were associated with, the LTTE). There was a logical or rational connection between the Authority’s doubt and the evidence in support of the proposition just stated (cf Applicants’ Submissions at [8.1.2] and [33]). The evidence establishing that connection appears in the country reports referred to in the Second Authority Decision at CB 792, fn 8: Department of Foreign Affairs and Trade, “DFAT Country Information Report – Sri Lanka” (18 December 2015) at [3.7]-[3.9]; Danish Immigration Service, “Human rights and security issues concerning Tamils in Sri Lanka” (1 October 2010) at pp 28-30, 60, 66-67. Contrary to the Applicants’ Submissions at [33] the regime in place involved more than mere “reporting requirements” or “road stops”;
(d)particulars 1A.2, 1A.3 and 1A.6 give rise to the second aspect challenged which appears in the emphasised passage below (at CB 794 at [53]; see also at CB 794-795 at [61]-[62]):
In the submission to the IAA the applicants’ representative addressed the claim that Brother M kept his LTTE role secret from the applicants and contended that “secrecy is a necessary element of the role of intelligence officer”. This claim would seem to sit in stark contrast with the photograph submitted of Brother M which purports to show him in LTTE uniform in a public place and in the company of another person. I have significant concerns about this photograph in the light of claims Brother M was an intelligence officer. A uniform suggests the wearer would have a combat role, whereas this is not claimed. The photograph is of two people, one in uniform and stated to be Brother M, posing for the camera at an outside event and in a place with a number of people milling in the background. I am concerned that this is not compatible with the role of an intelligence officer who it is claimed was working subversively in Colombo, including up to 2008 which was at the height of the civil war conflict and in the stringent security measures in place in Colombo. I do not accept that an LTTE intelligence officer who was working subversively, to the extent that even his extended family members were not aware of his role, would have allowed himself to be photographed while wearing LTTE uniform, or to be seen in a LTTE uniform in a public place; to do so would leave him at risk of detection by the authorities. I am concerned that this discordance in the information provided by the applicants and their accounts damages the credibility of their claims and the claim that this photograph displays Brother M in what is an LTTE uniform.
(e)in their e-mail to the Department dated 28 May 2013 (to which was attached the photograph referred to above), the applicants described Brother M as being “in the uniform”: CB 11. The photograph appears at CB 12. That claim having been made, it was not irrational for the Authority to infer that the photograph purported to portray Brother M wearing the uniform of the organisation of which it was asserted he was a member, the LTTE, at the time that he was allegedly a member of the LTTE (cf Applicants’ Submissions at [8.2.1.1] and [31]-[32]);
(f)it was also not irrational, for the Authority to reason that, if, as the applicants claimed, Brother M was an intelligence officer in the LTTE and secrecy was a quintessential element of that line of work, he would not be seen in public wearing the uniform of the organisation of which he was said to be a member. In this connection, contrary to Applicants’ Submissions at [8.3], the Authority did not find that Brother M was not depicted in that photograph (or in the obituary document); indeed, findings to the contrary were made at CB 795-796 at [61]-[62]. Rather, the upshot of the Authority’s reasons was rejection of the claims that Brother M was a member of the LTTE and that the attire he wore in the photograph was an LTTE uniform. The former appears at CB 796 at [62], while the latter is implicit in the final sentence in each of CB 794 at [53] and 796 at [61];
(g)the Authority’s reference at CB 794 at [53] to a “combat role” needs to be understood in context. The Authority’s conclusion was not that Brother M was a member of the LTTE but that he was not an intelligence officer as the applicants claimed (cf Applicants’ Submissions at [31]), but that he was not a member of the LTTE at all. The critical point being made by the Authority at CB 794 at [53] was that the fact of his wearing a uniform suggested that Brother M did not occupy the position of an intelligence officer in the LTTE. Once again, there was a rational basis for that reasoning: if, as the applicants claimed, “secrecy is a necessary element of the role of intelligence officer”, the wearing of a uniform in public was anything but secretive. On one view, therefore, the applicants’ emphasis on the Authority’s reference to “combat” is misplaced, as the choice for the Authority was not between finding that Brother M was an LTTE combatant and that he was an LTTE intelligence officer;
(h)particular 1A.5 gives rise to the third aspect challenged by the applicants which appears at CB 795 at [57] (footnotes omitted):
I also considered it significant that this document identifies the hero as a captain, indicating a person of rank within the LTTE, and adding to my concern at the ability of such a senior LTTE officer to remain living and working openly in Colombo until 2008. I note the comments as to the importance of secrecy in the role of intelligence officer but I find it difficult to accept that someone with such an LTTE rank was able to keep his involvement secret from his extended family, with whom he shared a residence in Colombo.
(i)the following points emerge from the Authority’s reasons (cf Applicants’ Submissions at [8.5.1] and [34]):
(i)according to the obituary document, Brother M was not a mere LTTE combatant. When compared with a mere combatant, the status that Brother M held in the LTTE was, plainly, a “senior … officer”. The evidentiary foundation for that premise was the country information cited at CB 795 at [57];
(ii)it is implausible that a senior officer in the LTTE could have operated in Colombo freely and undetected in the circumstances described at CB 792 at [45]. The evidentiary foundation for that premise is the country information cited at CB 792 at [45]; and
(iii)it is inherently implausible that an officer in the LTTE living in the same premises as the applicants over a course of a number of years could have kept secret his status as a senior officer in the LTTE. That was a logical deduction grounded in the inherent improbability of the maintenance of secrecy throughout the time that Brother M resided with the applicants. To borrow some words of the High Court in Republic of Nauru vWET040 (No 2) [2018] HCA 60; (2018) 93 ALJR 102; (2018) 362 ALR 235 (“WET040 (No 2)”) at [35] per Gageler, Nettle and Edelman JJ, the applicants’ version of events “so ill-accorded with the probabilities of ordinary human experience as to be implausible”;
(j)particular 1A.8 gives rise to the fourth aspect challenged which appears at CB 795 at [59]-[60]:
It is the applicants’ claim that Brother M was abducted in 2008 and that one year after this the authorities began to question Applicant 1 about his brother-in-law. From the applicants’ evidence this questioning in part was about the whereabouts of Brother M which is difficult to reconcile if the authorities had abducted him, although the applicants’ evidence does not specify who it is believed abducted Brother M.
Noting that the claim and the documentary evidence advanced is that Brother M was an intelligence officer with the LTTE, working subversively in Colombo and of the rank of captain, I consider it implausible that the authorities waited one year after the claimed abduction before contacting Applicant 1 to ask questions about Brother M if he was linked to the LTTE as claimed. The country information before me indicates that at this time the authorities used the wide-sweeping emergency powers in place to detain without charge those suspected of LTTE links and that they also pursued their associates, connections and relatives for enquiries. There is no indication that in those 12 months the authorities made any enquiries about Brother M or his activities with any of his extended family or came to the residence Brother M shared with the applicants in Colombo to make enquiries. Had the authorities identified and abducted or detained a person of the claimed profile of Brother M, I consider it implausible that they did not make any enquiries until one year later, particularly considering that this was toward the end of the civil war when the authorities were rigorous in pursuit of the LTTE members and their associates.
(k)the Authority acknowledged at CB 795 at [59] that the applicants did not identify the abductor(s) of Brother M (cf Applicants’ Submissions at [8.6.2]). To that extent, therefore, their claim went nowhere. Nonetheless, the evidence before the Authority established that those who were in the business of abducting LTTE operatives were the Sri Lankan authorities. Thus, in discharge of its duty to consider claims arising on the material before it, the Authority at CB 795 at [59]-[60] turned its mind to the question whether the authorities had abducted Brother M in 2008. It found that claim to be inherently implausible for the following reasons:
(i)it would be absurd for the authorities to abduct an individual only to ask members of his family one year thereafter of his whereabouts;
(ii)the country information showed that the authorities would pursue family members of those abducted at the time of abduction; and
(iii)there was no evidence to show that, in the 12-month period following the abduction of Brother M, the authorities made any enquiries of the applicants;
(l)the Applicants’ Submissions at [8.6.3] misread the Authority’s reasons. As the foregoing analysis makes plain, the Authority’s reasons did not proceed from any of the premises there listed;
(m)although the applicants’ specific challenges to the Authority’s reasons are misconceived for the foregoing reasons, there is yet another reason why ground 1A, which was concerned with their claim to fear persecution “based on imputed pro-LTTE or anti-government political opinion LTTE [sic] derived from the applicants’ family LTTE connections” (AS [5]), should fail: the Authority’s reasons disclose a separate and independent basis for rejecting that claim: VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33] per North J. Thus, at CB 803 at [94], the Authority found that the country information on which it relied “d[id] not support a finding that the applicants would be of adverse interest or harmed for reason of their familial LTTE link”. The applicants neither “had a significant role in the LTTE” nor were they “active in post-conflict Tamil separatism”; and
(n)the applicants have made no submissions in support of particular 1A.7 to ground 1A; indeed, CB 794 at [54] of the Second Authority Decision is not referred to anywhere in Applicants’ Submissions. In those circumstances, the Court should treat that particular as having been abandoned.
Consideration - Ground 1A
Broadly speaking, the matters complained of by AWV18, and in respect of which jurisdictional error in the Second Authority Decision is said to arise may be summarised as follows:
(a)Brother M’s capacity to operate as a spy in Colombo;
(b)the photo of Brother M in uniform;
(c)Brother M’s rank of captain;
(d)Brother M’s abduction; and
(e)the date of the obituary for Brother M.
Brother M’s capacity to operate as a spy in Colombo
There is no doubt that it is of the essence of being a spy that the spy seeks to operate without being detected. But not every spy, or putative spy, can do so, and whether or not a particular person can operate as a spy will doubtless depend on the nature of the physical, political, legal and security environment in which they seek to operate.
In this case the country information indicated that there was more than a regime of returning boat stops and reporting requirements in Colombo at the relevant time. Rather, there was country information which indicated that persons of perceived Tamil ethnicity (including those who were, were believed to be, members of or associated with the LTTE) were subject to a strict regime of identification and detention, and it was open to the Authority to find accordingly.
The Authority’s conclusion that it was difficult to accept that a person (here Brother M) might have operated as an LTTE spy in Colombo was therefore open on the material before the Authority. It is certainly a conclusion which another decision-maker might have arrived at on the same material, and it cannot be said to be a conclusion which is illogical or irrational, or otherwise unreasonable.
The photo of Brother M in uniform
AWV18 submits that the Authority’s findings concerning the photograph of Brother M in uniform being incompatible with Brother M being a spy in Colombo in about 2008 are implausible.
At the outset it is necessary to observe that the Authority’s ultimate finding was that Brother M was not a member of the LTTE, and, at least implicitly, that the uniform in the photograph was not an LTTE uniform: CB 794 at [53] and 796 at [61]–[62]. But insofar as it was claimed that Brother M was a spy, operating covertly in Colombo and unbeknown to be so by members of his extended family with whom he resided, and that the photo purports to show Brother M in an LTTE uniform, there is nothing implausible in the Authority’s finding that:
(a)the wearing of a combat uniform was inconsistent with Brother M being a spy; or
(b)it was incompatible with the proposition that Brother M was a spy that he would be photographed in public wearing what was said to be an LTTE uniform.
In the context of:
(a)a then ongoing civil war in Sri Lanka between the Sri Lankan government and the LTTE in which tens of thousands had been killed: CB 277, 384, 432-433, 537;
(b)the adoption by the Sri Lankan security agencies of “stringent security measures to identify and detain LTTE members, particularly in Colombo”: CB 792 at [45], see also CB 794 at [53];
(c)there being in place in Sri Lanka “wide-sweeping emergency powers in place to detain without charge those suspected of LTTE links”: CB 795 at [60]; and
(d)Tamils being “subject to compulsory registration of residence and other security checks, particularly in Colombo”: CB 796 at [64], and “subject to regular security and identity checks by the authorities at security checkpoints in place in Colombo”: CB 797 at [68],
a conclusion that Brother M was not an LTTE spy in Colombo, because a spy would not be seen in public in what was claimed to be an LTTE uniform, is a conclusion which was obviously open on the material before the Authority. On one view it might be said to be the only obvious conclusion which accords with common sense. It is certainly not a conclusion which is implausible on the material before the Authority.
The suggestion that the reasoning is implausible because the photograph of Brother M might have been taken earlier, was not something that appears to have been claimed before the Authority, and is no more than a late, gratuitous and argumentative afterthought.
The Authority’s conclusion with respect to the photograph of Brother M cannot, once again, be said to be a conclusion which is illogical or irrational, or otherwise unreasonable.
Brother M’s rank of captain
AWV18 asserts that the finding by the Authority that it is difficult to accept that Brother M was able to live and work openly for the LTTE the in Colombo until 2008, and keep that involvement secret from his extended family with whom he resided, because of his “senior rank” as a “captain”: CB 795 at [57] was implausible.
In relation to this assertion by AWV18 much was made by AWV18 as to whether a “captain” was a “senior rank”. A “captain” in the armed forces (and the LTTE was an armed force, albeit manifestly not a part of the armed forces of Sri Lanka) is a person who is the head of or in authority over other persons, and in that respect is senior to them (usually ranking above a lieutenant and those subordinate to a lieutenant): Macquarie Dictionary (Seventh Edition) (Sydney: Macquarie Dictionary Publishers, 2017), volume 1, page 232; The Shorter Oxford English Dictionary on Historical Principles (Third Edition) (Oxford: Clarendon Press, 1983), volume I, page 282. The endeavour by AWV18 in submissions to this Court to diminish the status of the position of “captain” which AWV18 claimed was held by Brother M by comparison to the status of a naval captain is, in the circumstances, misconceived, the comparison being irrelevant. The Authority used the phrases “person of rank” and “senior officer” to describe the status of the rank of captain, and, in the circumstances, those descriptors were appropriate to that task, and it was therefore not implausible for the Authority to describe the rank of captain in an armed force such as the LTTE as being one of a “senior officer”.
It was likewise not implausible for the Authority to find that a person said to be of the rank of captain in the LTTE and operating as a spy during a civil war, might have difficulty in keeping his role secret from his extended family with whom he resided in Colombo. It is not to the point that a person operating in such a role might have been able to keep it secret. Rather, it was plausible, on the basis of normal human experience, for the Authority to find that a person in Brother M’s circumstances operating in such a role might have difficulty in keeping it secret.
The Authority’s conclusion with respect to Brother M’s alleged rank of captain and his capacity to keep it secret, cannot, again, be said to be a conclusion which is illogical or irrational, or otherwise unreasonable.
Brother M’s abduction
Assuming that the alleged abduction of Brother M was carried out by the Sri Lankan authorities (a claim not specifically made by AWV18) the Authority found it implausible that there was a failure to question the family of brother M for a year after the alleged abduction. AWV18 challenges this finding on the basis that the finding is itself implausible.
The Authority’s findings in relation to the alleged abduction of Brother M were as follows:
(a)that it was “difficult to reconcile if the [Sri Lankan] authorities had abducted” Brother M in 2008, and that it was not until a year later that those same authorities questioned AWV18 concerning Brother M’s whereabouts: CB 795 at [59];
(b)noting that the claim and documentary evidence was that Brother M was an LTTE intelligence officer of the rank of captain working “subversively” in Colombo, it was considered implausible, “particularly considering that this was toward the end of the civil war when the authorities were rigorous in pursuit of LTTE members and their associates”: CB 795 at [60], that the Sri Lankan authorities would wait for a year after the claimed abduction before contacting AWV18 to question whether Brother M was linked to the LTTE, and in this regard had further regard to country information concerning the wide sweeping emergency powers in place in Sri Lanka to detain without charge those suspected of LTTE links, and that the Sri Lankan authorities “pursued … [the] associates, connections and relatives” of those suspected of LTTE links “for enquiries”: CB 795 at [60].
The Authority’s reasoning in relation to the delay of one year in questioning AWV18 is entirely plausible. In the security environment in Colombo at the time pertaining to those with suspected LTTE links, and given the alleged rank and role of Brother M in the LTTE there was no implausibility in finding that the delay by the Sri Lankan authorities in questioning AWV18 was difficult to reconcile. Again, therefore, it cannot be said to be a conclusion which is illogical or irrational, or otherwise unreasonable.
Date of the obituary for Brother M
The Court notes that particular 1A.7 of ground one was not a matter adverted to in the Applicants’ Submissions. To the extent, however, that it remains relied on by AWV18, the finding at CB 794 at [54] that the obituary dating the death of Brother M to 20 January 2009 was a matter which undermined a claim that AWV18 (and AWW18) did not know about Brother M’s death for a number of years, and allegedly until four years after AWV18 arrived in Australia, was one which was open to it on the material before the Authority, and was one which another reasonable decision-maker might have made, and was not illogical, irrational or otherwise unreasonable.
For the reasons set out above ground 1A is not made out. The conclusions reached by the Authority were conclusions which another decision-maker might have arrived at on the same material, and it cannot be said to be conclusions which were illogical or irrational, or otherwise unreasonable: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [131]-[135] per Crennan and Bell JJ. The “implausibility” posited by AWV18 is no more than an expression of disagreement with the Authority’s conclusions, and an endeavour to have the Court substitute different factual findings for the factual findings made by the Authority, a course the impermissibility of which has long been recognised in judicial review proceedings of this type: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 (“CQG15”) at [61] per McKerracher, Griffiths and Rangiah JJ.
It follows that Ground 1A is therefore not made out, and does not establish jurisdictional error in the Second Authority Decision.
Ground 2A
Ground 2A is as follows:
2AThe decision of the IAA to affirm the fast track reviewable decision under section 473CC(1)(a) of the Migration Act 1958 (Cth) was vitiated by reasoning going to an important integer of the applicants’ claims, that the first applicant was wanted for LTTE involvement and had an outstanding warrant for ‘aiding and abetting an armed group', which lacked an intelligible justification or was informed by ‘implausibility’ reasoning premised upon matters of conjecture of [sic] speculation.
Particulars
2A1The IAA accepted that the documentary evidence showed ‘on face value [that it] support[ed] the applicant’s claim that he is subject to an outstanding warrant’ but that that did ’not overcome my significant concerns as to the genuineness of the warrant document and the applicant’s claims’ [82];
2A2The IAA found it ‘implausible … that the authorities would leave warrant with people unconnected to the subject of the warrant’ and that they would retain the warrant [78];
2A3The IAA found it implausible that the applicant was ‘detained in prison for three months [on suspicion of LTTE involvement] yet released [on bail] on the provision of [a] simple document’, a police report from the first applicant’s home area showing no other criminal history [77].
Applicants’ submissions
The applicants’ submissions were as follows:
(a)particular 2A.2 falls squarely within the reasoning impugned in DBX16 v Minister for Immigration and Border Protection [2021] FCA 238 (“DBX16”). Here, the Authority accepted at [82] per Kenny J that the documentary evidence showed “on face value [that it] support[ed] the applicant’s claim that he is subject to an outstanding warrant”. It was therefore material. But the Authority thought it “did not overcome [its] significant concerns as to the genuineness of the warrant document and the applicant’s claims: CB 799 at [78]. That was in part because the Authority thought it ‘implausible … that the authorities would leave a warrant with people unconnected to the subject of the warrant’ (and ‘implausible’ that they would retain it.): CB 799 at [78]. There was simply no probative evidence capable of sustaining the undisclosed premises that Sri Lankan law does not require or permit a warrant to be handed to “people unconnected to the subject of the warrant”;
(b)similarly particular 2A.3 has no evidentiary foundation. Here, the Authority reasoned that it was “implausible” that AWV18 was “detained in prison for three months [on suspicion of LTTE involvement] yet released [on bail] on the provision of [a] simple document” in the form of AWV18’s brother’s production of AWV18’s criminal history obtained from their home province. The undisclosed premises that it was open to the arresting authorities to detain AWV18 for an unlimited period or a period in excess of three months, or that it was irrelevant to whether a person in detention would be granted bail that the person had no criminal history at all simply do not follow. Even by analogy to Australia, that a detainee is a “cleanskin” would surely point toward a reason to release. It is not a logical basis to disbelieve the whole account; and
(c)in any event, as described above, one reason the Authority gave for disbelieving AWV18’s claim to have been arrested in June 2012 on suspicion of LTTE activity (corroborated by a warrant and a letter from his attorney and a bail bond receipt), was that it “is important to note emergency powers in place at the time allowed suspects to be held for three month periods without charge”: CB 799 at [75]. The objective evidence actually denied the undisclosed premises.
Minister’s submissions
The Minister’s submissions were as follows:
(a)by this ground, the applicants challenge the rationality of the Authority’s rejection of their claim to fear persecution by reason of AWV18 being the subject of an outstanding warrant for aiding and abetting an armed group;
(b)before addressing each of the applicants’ specific complaints, it is desirable to point out the flaw in their argument in the final sentence in the Applicants’ Submissions at [10]: a decision-maker such as the Authority is entitled to place no or minimal weight upon documentary evidence said to corroborate an applicant’s claims in the light of adverse credibility findings. That approach is consistent with authority: WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1580 at [20]-[21] per French J (as his Honour then was); Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485; (2010) 115 ALD 294 at [33] and [35]-[37] per North and Lander JJ, and [42] and [50] per Katzmann J;
(c)as to particular 2A2 this relates to the first part of the Authority’s reasons challenged by the applicants in the passage in the Second Authority Decision at CB 799 at [78]:
I have further concerns as to the warrant document itself. The document is dated 29 July 2013 and it is claimed this document was in the possession of the current occupants of the applicants’ previous Colombo residence and was passed to the brother of Applicant 1 when the applicant asked his brother in 2017 to check his previous Colombo address. I find this account to be implausible; I do not accept that the authorities would leave a warrant with people unconnected to the subject of the warrant. I also consider it implausible that these people would retain such a document when they had no connection to the subject of the warrant.
(d)the Authority’s findings have nothing to do with the Sri Lankan legal system (cf Applicants’ Submissions at [11.1] and [28]). Nor, contrary to the Applicants’ Submissions at [28], does it avail the applicants to refer to DBX16, which concerned different factual findings made on the basis of different evidence, and to say that the present case “falls squarely within the reasoning impugned” in that case. The nub of the Authority’s reasoning at CB 799 at [78] was that it is inherently implausible at best, and bizarre at worst, for a person who is not the subject of an arrest warrant for an offence as serious as aiding and abetting an armed group either to be issued the warrant in the first place or to hold and retain it for no apparent reason. Indeed, there was country information (a Report of a [UK] Home Office fact-finding mission to Sri Lanka in 2019, published in 2020) before the Authority, albeit post-dating 2013, to support that view: “arrest warrants are not issued to the wanted person or their family”; rather, “[w]hen someone is taken into custody the arrestee and their family are issued with a receipt”: CB 624 at [7.2.1];
(e)as to particular 2A.3 this relates to the second aspect of the Authority’s reasons challenged by the applicants and concerns the findings in the a Authority Decision at CB 799 at [77]:
If the warrant reflects the initial alleged offences being aiding and abetting an armed group as is contended by the representative and, noting the seriousness of such offences, I consider it implausible he was released from prison in June 2012 in the manner described. The applicant claims he was released when his brother obtained a police report from his birthplace which verified he had no previous problems. It is difficult to reconcile that the applicant was of such interest to the authorities he was detained in prison for three months yet released on the provision of such a simple document. I have concern as to the claim Applicant 1 was of such interest to the authorities he was detained in prison for three months yet was released on the provision of a simple police report and the warrant which records serious offences adds to these concerns.
(f)the passage just quoted from the Authority Decision needs to be read with the previous paragraph in the Authority Decision at CB 799 at [76]. The submission made by the applicants’ then representative to which reference is made at CB 799 at [76] appears at CB 505 and is as follows:
From the applicants’ account the warrant was issued after Applicant 1 breached bail and reporting conditions imposed on his release in September 2012. The particulars on the warrant for “Particulars of alleged offence or reasons for issue of warrant” are stated as “aiding and abetting an armed group”. The representative submitted that “when the applicant was detained for 3 months in June 2012, he was detained on suspected LTTE connections (see entry interview). It is possible for the Sri Lankan security agency to issue warrant on that basis”. The letter from the Sri Lankan lawyer is dated 31 July 2019 and states that the writer has perused the case file in the court and found an open warrant issued against the applicant on 29 July 2013 for the offence of aiding the armed group and confirms that the warrant is still “alive” and the case is still pending.
(g)at CB 801 at [83], the Authority described the police report (which is at CB 313) as follows:
The police report is addressed to an attorney, which may support the claim that Applicant 1 was imprisoned at the time the report was written, but the report itself is very basic and makes no reference to the applicant being in prison at the time, rather it refers to his residential address in Colombo. As such I give this report little weight.
(h)when these paragraphs are read together, it is readily apparent that the Authority considered it to be implausible that the Sri Lankan authorities would release AWV18 from detention on the basis of a police report bearing the characteristics just described when the conduct in which he had allegedly engaged giving rise to the offence with which he was charged formed the very basis of his arrest and detention in June 2012. Put another way, it is implausible that A could be arrested by B on the basis of engaging in certain conduct (X), released because somebody subsequently told B that A had not engaged in X, only for B to then charge A with X. Once again, the Authority’s reasoning at [76]-[77] does not proceed from the premises listed in the Applicants’ Submissions at [12.1] or [29];
(i)contrary to Applicants’ Submissions at [12.2] and [30] the Authority did not reject AWV18’s claim to have been detained in June 2012 because “emergency powers in place at the time allowed suspects to be held for three month periods without charge”: CB 799 at [75]. The existence of those powers had nothing to do with the Authority’s rejection of his claim. What counted against AWV18 were the series of adverse findings made at CB 799-801 at [76]-[85] (only some of which are challenged); and
(j)in the Applicants’ Submissions at [13], the applicants take issue with the Authority’s reasons at CB 800-801 at [83]-[84] in relation to the bail bond payment receipt, yet those reasons do not feature in their submissions in relation to ground 2A of the Applicants’ Submissions at [28]-[30] nor in any of the particulars to ground 2A. It appears, therefore, that this complaint does not form a part of the Amended Judicial Review Application and should, consequently, be ignored. In the event that the point is pressed, the Minister submits as follows:
(i)at CB 800-801 at [83], the Authority made the following relevant findings (footnotes omitted, grammatical errors in original):
o The bail document (English language translation by solicitor) indicates that 1000 rupees was paid as “Cash Bond for the 11th Defendant of case No. 95900”. In comparison fines for breaches of the Immigrants and Emigrants Act, which while serious offences are not security offences relating to the LTTE, are usually around 15,000/20,000 rupees. It is difficult to accept that someone accused of security related offences would be released on the payment of such a small amount of surety. It is difficult to accept that this document and payment are related to the release of someone suspected of serious security offences
o I have had the opportunity to examine the original of the bail receipt and I have had regard to the comments of applicant’s representative that this does not resemble a fraudulent or fake document. The bail receipt is a simple hand written double sided slip of paper with no security features beyond a stamp below the signature field. Taking into account my concerns as to the small amount of surety I give this document little weight.
(ii)the Applicants’ Submissions at [13.1]-[13.2] misread the Authority’s reasons. The basis for the Authority’s decision to place little weight on the bail document was not that it had “no security features beyond a stamp below the signature field”, but the concerns that it had “as to the small amount of surety”. The observation made by the Authority about the document’s security features was in response to the submission advanced by the applicants’ then representative that the document “d[id] not resemble a fraudulent or fake document”; and
(iii)as to the question of surety, the Authority’s reasons do not proceed from the premise that “the maximum fine for a different offence is indicative of the amount likely to be accepted as a suitable bail bond”. The point is that the Authority had difficulty accepting the proposition that bail in respect of a national security offence – undoubtedly a serious matter – could be secured by the payment of but a fraction of the surety payable in respect of immigration and emigration-related offences. This was not speculation on the part of the Authority: it had regard to the objective seriousness of the offence with which AWV18 had allegedly been charged and the amount of surety payable to secure bail and compared that information with the objective seriousness of offences contrary to the Immigrants and Emigrants Act 1948 (Sri Lanka) (“I & E Act”) and the amount of surety payable to secure bail in respect of such offences. There was nothing at all irrational or illogical about the Authority’s approach to its fact-finding task.
Consideration – Ground 2A
The first aspect of ground 2A relates to the leaving of an arrest warrant for AWV18 with members of his family. AWV18 complains that the Authority’s finding that the Sri Lankan authorities would not leave a warrant with persons unconnected to the subject of that warrant lacks an intelligible justification, and that the reasons given are implausible.
The Court needs, however, to go no further than the available country information to find a basis in the materials before the Authority which provide a plausible and intelligent justification for the finding that the Sri Lankan authorities would not leave a warrant with persons unconnected to the subject of that warrant. The 2019 UK Home Office Report (published in 2020) indicates that warrants “are not issued” to either the wanted person or their family, and that when a person is arrested the person arrested and their family are issued with a receipt: CB 624 at [7.2.1]. Whilst this specific information was given to the UK Home Office in 2019 there is nothing to indicate that it was not, and had not been, the ongoing practice of the Sri Lankan authorities. In the circumstances, this country information provided an evidentiary basis for the Authority’s finding that the Sri Lankan authorities would not leave a warrant with persons unconnected to the subject of that warrant and there was nothing illogical, irrational or otherwise unreasonable in the Authority so finding.
The fact that there was specific country information available to the Authority with respect to the practice of not issuing warrants, and upon which the Authority relied, is sufficient to distinguish this matter on the facts from DBX16.
Having regard to the country information set out in the preceding paragraph at [38], but also, and independently, to the nature of the offence the subject of the warrant for AWV18’s arrest, there was also nothing implausible in the Authority therefore taking the view that a warrant for a serious offence (in this case allegedly aiding and abetting an armed group) would not be left with persons unconnected to the subject of the warrant for AWV18’s arrest. Further, the fact that the Authority found that if the warrant had been left with a person unconnected with the subject of the warrant, that that person would not retain the warrant: CB 796 at [78], is not a finding which, having regard to the probabilities of ordinary human experience, is illogical, irrational or otherwise unreasonable.
The second issue in Ground 2A is in relation to the alleged release from detention of AWV18 after three months on the basis of a police report showing that he had no prior criminal history. Whilst, as the applicants submit, this might provide a proper basis for release from detention, it is equally plausible, as the Authority found, that is not plausible that a person charged with a national security offence of aiding and abetting an armed group, would be released from detention solely on the basis of such a police report. The seriousness of the offence is a factor which lends plausibility to the Authority’s finding. It is a finding which has a rational basis, and is not a finding which another rational decision-maker might have made, and was not therefore illogical or irrational, or otherwise unreasonable: SZMDS at [131]-[135] per Crennan and Bell JJ. To the extent that the issue of the bail bond payment arises the finding of the Authority is not illogical, irrational or otherwise unreasonable because there was a legitimate basis for it in the rationale that it is unlikely that a person detained on a national security offence might be released on a minimal bond payment, and one significantly less than those usually imposed in relation to less serious offences under the I & E Act (Sri Lanka).
It follows that Ground 2A is therefore not made out, and does not establish jurisdictional error in the Second Authority Decision.
Ground 3A
Ground 3A was further amended at hearing: Transcript, p 2, and its final form is as follows:
3A.The decision of the IAA to affirm the fast track reviewable decision under section 473CC(1)(a) of the Migration Act 1958 (Cth) was vitiated by a constructive failure to exercise jurisdiction in that the IAA failed to ask itself: ‘what if I am wrong?, which, in the circumstances, it was required to do in evaluating the risk of future harm, or was unreasonable.
Particulars
3A1The IAA declined the applicants’ request to ‘make enquiries with the Sri Lankan authorities it here is doubt as to the authenticity of the [arrest] warrant’, noting the ‘consent’ of the first applicant to doing so, on the basis that it did not ‘consider it appropriate for the IAA to conduct such an enquiry noting the applicants’ claim to fear harm from the Sri Lankan authorities’ [18], but was not ultimately satisfied that the applicants feared any such harm;
3A2The IAA noted an exchange at the arrival interview in which the second applicant stated that an unidentified person was in the LTTE, but, although acknowledging that it could be confidently known to whom that statement was directed [49], was ‘not satisfied’ that it was directed to ‘Brother M’ having regard to contextual matters [52]”
Applicants’ submissions
The applicants’ submissions on Ground 3A were as follows:
(a)Ground 3A can be framed as an unreasonable failure to consider whether to exercise, or to actually exercise, the power under 473DC(1) of the Migration Act to seek to corroborate the information from AWV18’s attorney;
(b)at CB 786 at [18] the Authority decided not to exercise the power under s 473DC of the Migration Act and gave these reasons:
18.The submission advised “the applicant consents” to the IAA making enquiries with the Sri Lankan authorities if there is doubt as to the authenticity of the warrant arrest [sic]. I do not consider it appropriate for the IAA to conduct such an enquiry noting the applicants’ claim to fear harm from the Sri Lankan authorities. Furthermore, to support this claim [AWV18] has since obtained a letter from a lawyer in Sri Lanka which is discussed further below.
(c)the Authority disbelieved the applicants’ claims. From that point, its reasons for not seeking to corroborate the disbelieved claims fell away entirely. On the Authority’s reasons, AWV18 had never been arrested, had never been detained, had never been on bail, and had never had a warrant issued. From that point, the rationale for not exercising the power under s 473DC of the Migration Act fell away entirely. From that point, there was no explanation at all for not exercising the power which it had expressly considered whether or not to exercise;
(d)alternatively, the reasoning at CB 786 at [18] reveals that the Authority must not have been convinced of the falsity of AWV18’s fear of harm even though it was not ultimately satisfied. It is well-established that the evaluation of future risk under 36(2)(a) and (aa) of the Migration Act is a function of the degree of certainty which the decision-maker has that the past events have occurred: Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43 (“Rajalingam”). Where there is uncertainty about an event significant to the ultimate question as to whether an applicant has a well-founded fear (or whether there are “substantial grounds for believing …”), the review miscarries unless the decision-maker asks: “what if I am wrong?”; and
(e)the Authority Decision discloses just that uncertainty. But it does not disclose that the Authority asked itself: “what if I am wrong?”
Minister’s submissions
The Minister’s submissions were as follows:
(a)in his submissions dated 31 July 2017 the applicants’ then representative said the following: CB 300
If the IAA has any doubt on the authenticity of the warrant arrest, the applicant consents to the IAA to make enquiries with the SL authorities in Colombo.
(b)to be clear, the then representative of the applicants, who had made an application to the Minister seeking Australia’s protection, invited the Authority, prior to making a decision under s 473CC(2) of the Migration Act, to approach the Sri Lankan authorities and enquire as to the circumstances of AWV18. The risk to the well-being of the applicants by the Authority taking such an approach in circumstances where it had not yet completed the review (and found that the applicants do not engage Australia’s protection obligations under the Migration Act) is obvious;
(c)that concern loomed large in the Authority Decision not exercising its discretionary power under s 473DC(1) of the Migration Act to get new information, and at CB 786 at [18] (set out at [43(b)] above) the intelligible justification for the Authority Decision not to exercise its discretionary powers under s 473DC of the Migration Act is clear;
(d)the applicants attempt to avoid this result by making the submissions set out at [43(c)] above (see Applicants’ Submissions at [38]);
(e)the difficulty with these submissions is that the “point” referred to was 3:15 pm on 27 May 2020, being the time at which the Authority made a decision under s 473CC(2)(a) of the Migration Act: Migration Act, s 473EA(2). The point at which the Authority came to prepare its written statement under s 473EA(1) was the point at which the Authority disbelieved the applicants’ claims. From that “point”, the Authority was functus officio in respect of its decision-making power under s 473CC(2) of the Migration Act: Migration Act, s 473EA(3). From that point, the Authority had no power to exercise the discretions in s 473DC(1) and/or (3) of the Migration Act (being powers exercisable in aid of exercising the dispositive powers in s 473CC(2) of the Migration Act);
(f)in any event, the Authority gave an explanation as to why it did not exercise any power to get new information under s 473DC of the Migration Act. Two years after making the request on 31 July 2017, the applicants obtained a letter from a Sri Lankan lawyer which attested to a warrant having been issued in relation to AWV18 on 29 July 2013. The letter, dated 31 July 2019, appears at CB 378. In other words, the Authority considered that it was capable of making a decision on the review on the basis of the material it had (including the letter from the Sri Lankan lawyer) and did not need to make enquiries of the Sri Lankan authorities; and
(g)the applicants’ next complaint is that the Authority’s reasoning at CB 786 at [18] “reveals that [it] must not have been convinced of the falsity of AWV18’s fear of harm even though it ultimately was not ultimately satisfied”: Applicants’ Submissions at [39]. That submission should be rejected. As the applicants candidly acknowledge at Applicants’ Submissions at [38], the Authority disbelieved AWV18’s claims to have been arrested, detained, on bail and had a warrant issued. As its reasons for decision establish, the Authority had “no real doubt” about those claims: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 (“Guo”); CLR at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”) at [55] and [118]-[119] per Tracey and Foster JJ. The Authority was not required to express its findings as to whether alleged past events actually occurred in a manner that made explicit its degree of conviction or confidence that those findings were correct: Rajalingam at [64] and [67] per Sackville J; MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [95] per Keane CJ, Perram and Yates JJ.
Consideration – Ground 3A
The Authority provided a proper, reasonable and intelligible justification for not exercising the power to obtain new information under s 473DC of the Migration Act in that it was satisfied that it had before it material sufficient to the task of carrying out its function. The Authority made detailed findings in relation to the issues concerning AWV18’s alleged arrest, detention, bail and warrant, and did so having regard to the not inextensive submissions made by the applicants, and to relevant country information. The information included the letter from AWV18’s Sri Lankan lawyer. Further, it is obvious (or ought to be so) why no enquiries were, or ought to have been, made of the Sri Lankan authorities in relation to these matters. In circumstances where the Protection Visa application was yet to be determined, enquiries of the type suggested might only serve to put the applicants at risk in the event of their return to Sri Lanka if their Protection Visa was not granted, in circumstances where they might not otherwise have been at risk upon return to Sri Lanka had the enquiries not been made. There were therefore logical, rational and reasonable bases for not making the inquiries suggested, and no jurisdictional error arises in relation to the Second Authority Decision by reason of the enquiries not being made: SZMDS at [131]-[135] per Crennan and Bell JJ; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 367; (2013) 115 ALD 248 at [63]-[76] per Hayne, Kiefel and Bell JJ.
In relation to whether the Authority ought to have asked the question “what if I am wrong?”, the Court observes that the Authority only needed to ask itself this question if it had any real doubt as to its findings, otherwise there is no obligation to consider the question “what if I am wrong?”: Guo, CLR at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; SZMCD at [55] and [118]-[119] per Tracey and Foster JJ; Dhiman v Minister for Immigration & Multicultural Affairs [2000] FCA 2221 at [12] per Sundberg, Katz and Healy JJ. In relation to the issues concerning AWV18’s alleged arrest, detention, bail and warrant, it is not, in the Court’s view, open to doubt that the Authority expressed any doubt whatsoever with respect to its conclusions in respect of these matters. The Authority was therefore not obliged to consider the question “what if I am wrong?”
It follows that Ground 3A is therefore not made out, and does not establish jurisdictional error in the Second Authority Decision.
CONCLUSION AND ORDERS
The Court has concluded that none of the three grounds of the Amended Judicial Review Application have been made out, and that no jurisdictional error in the Second Authority Decision has been established. It therefore follows that the Amended Judicial Review Application must be dismissed, and there will be an order accordingly.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 27 July 2022
SCHEDULE OF PARTIES
PEG 179 of 2020 Applicants
Fourth Applicant:
AWY18
Fifth Applicant:
AWZ18
Sixth Applicant:
AXA18
0
24
0