AXQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 39
•3 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AXQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 39
File number(s): BRG 513 of 2020 Judgment of: JUDGE EGAN Date of judgment: 3 February 2022 Catchwords: MIGRATION – Application for protection visa – no basis for allegation of reasonable apprehension of bias on the part of the Authority – no demonstrated jurisdictional error in the way in which the Authority arrived at its decision – no merit in grounds of review – application dismissed. Legislation: Migration Act 1958 (Cth), ss.5(1), 5J, 36(2)(aa), 36(2A), 65, 473CB and 473DD Cases cited: SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13
SZGME v Minister for Immigration and Citizenship [2008] 168 FCR 487
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159
VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88
CED15 v Minister for Immigration and Border Protection [2018] FCA 451
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZMDS (2010) 246 CLR 611
CNY17 v Minister for Immigration and Border Protection & Anor (2019) 268 CLR 76
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 17 January 2022 Date of hearing: 30 November 2021 Counsel for the Applicant: Mr Shah of Counsel Solicitor for the Applicant: Holding Redlich Counsel for the First Respondent: Ms Hoiberg of Counsel Solicitor for the First Respondent: Minter Ellison Second Respondent: Submitting appearance save as to costs ORDERS
BRG 513 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AXQ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
3 FEBRUARY 2022
IT IS ORDERED THAT:
1.The Further Amended Application for Review filed on 21 July 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $7,467.00.
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 EGAN
Introduction
The applicant is a Sri Lankan citizen who arrived in Australia on 23 April 2013 as an unauthorised maritime arrival. She so arrived in the company of her husband and daughter. Another daughter has since been born in Australia.
The way in which the Originating Application came before this Court, in respect of the applicant only, has been concisely set out in paragraphs [5] – [11] inclusive of the applicant’s consolidated submissions filed on 14 December 2021, which submissions were relevantly as follows:
“[5]In December 2016, the Applicant (and her two daughters), through her husband’s application for a safe haven enterprise visa, made a protection claim. In that application, the husband made claims on behalf of the Applicant and his two daughters as vulnerable females. This involved a claim, by the husband, of a fear that the Applicant (his wife) and his daughters, as Tamil women, would be at risk of sexual and physical assault by Sri Lankan authorities, if they were returned to Sri Lanka.
[6]On 24 October 2017, the delegate for the Minister for Immigration and Border Protection (“the Delegate”) refused the application for a protection visa.
[7]On 8 February 2018, the Authority affirmed the Delegate’s decision.
[8]The family sought judicial review of the Authority’s decision in this Court. This Court dismissed that judicial review application. The family then appealed to the Federal Court. On 29 May 2020, Justice Greenwood found that the Authority’s decision dated 8 February 2018 contained jurisdictional error and remitted the matter to the Authority to be determined according to law.
[9]Prior to the Authority reviewing the Delegate’s decision afresh, the Applicant provided a statement (dated 12 June 2020) to the Authority which included new information. In that statement, the Applicant disclosed that she had been raped in Sri Lanka on many occasions by different Sri Lankan army officers and feared she would be raped again if she returned to Sri Lanka and held a similar fear for her daughters (“the rape allegations”). The Applicant’s then solicitor requested the Authority to keep the Applicant’s statement confidential. Submissions were also provided to the Authority on behalf of the Applicant, her husband and their two daughters.
[10]On 12 August 2020, the Authority affirmed the Delegate’s decision not to grant the Applicant a protection visa. The Authority’s decision and reasons are found in the court book at pp. 428-450. That decision and reasons relate only to the Applicant not her husband and daughters. Given the Applicant’s solicitor’s request to keep the new information confidential, the reviewer proceeded to make three separate decisions with respect to the Applicant’s husband and her two daughters. Applicant’s husband and her two children have sought judicial review of those separate decisions in BRG514/2020.
[11]The Authority was obliged, pursuant to s. 473DD(b)(ii) of the Act, to decide whether it would consider the rape allegations as part of its review. The Authority decided that it was not obliged to consider those allegations as part of its review. The Applicant contends that it is that decision that is affected by jurisdictional error.”
Having regard to the judgments of the Full Court of the Federal Court of Australia in SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13 at [35] and SZGME v Minister for Immigration and Citizenship [2008] 168 FCR 487 at [87], this Court, respectfully, is satisfied that the proceeding filed in this matter, on behalf of the applicant alone, is appropriate and in order. The Joint Submissions filed on behalf of each of the applicant and the first respondent on 18 October 2021 are in support of that position.
At the hearing before the Court, the Applicant relied upon a Further Amended Application for Review. Grounds 2, 2A and 4 of such Application were relied upon, and were as follows:
“[2]The IAA misunderstood and misapplied its function in determining whether the allegations of rape were “credible”.
[2A]The IAA’s determinative finding, at the preliminary stage of its review, on the probative value of the rape allegations (that they were fabricated), gave rise to a reasonable apprehension of bias, on the IAA’s part, concerning the conduct of its review and its decision under Part 7AA of the Act.
[4]The IAA’s decision to not accept the allegations of rape as “credible personal information” was legally unreasonable.”
Consideration of Legal Propositions by the Authority
At [7] of its reasons, the Authority recorded that it had had regard to review material given to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).
At [51] of its reasons, the Authority duly recorded what constituted a well-founded fear of persecution under s. 5J of the Act.
At [119] of its reasons, the Authority recorded the criteria for complimentary protection as set out in s. 36(2)(aa) of the Act.
At [120] of its reasons, the Authority duly recorded what constituted “significant harm” under s. 36(2A) of the Act.
At [121] of its reasons, the Authority noted that the expressions “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” were defined in s. 5(1) of the Act.
Consideration of Applicant’s Claims as New Information
Section 473DD of the Act relevantly provided as follows:
“473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible purpose information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”
It could not be disputed that the applicant’s new claims could have been provided to the Minister before the Minister’s delegate made the decision under s. 65 of the Act. The applicant deliberately chose not to do so. Section 473DD(b)(i) was accordingly not engaged.
Ground 2 of the Further Amended Application for Review was a claim that the Authority had misunderstood, or misapplied, its function in determining whether the applicant’s allegations of rape were credible or not. It was asserted that the Authority’s function when considering the new information, in the context of s. 473DD(b)(ii), was to consider, as a preliminary matter, and before reaching the determinative stage of its decision making process, whether the new allegations of rape were capable of being believed, as opposed to whether such allegations were true or not.
Counsel for the applicant relied upon the judgment of Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [40] – [43] inclusive, where His Honour said:
“[40]An alternative construction for the use of the word “credible” in the phrase” credible personal information”, is that it has a meaning consistent with the meaning given to the word in a setting somewhat akin to that found in s 473DD(b)(ii), that is, in the expression of one aspect of the natural justice hearing rule. I addressed the meaning of “credible” when used in that context in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288 at [79], where I said this:
The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD at [56]. That opportunity need only be given in relation to information that Brennan J described in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629 as “credible, relevant and significant”. “Credible, relevant and significant, is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is “evidently not credible, not relevant, or of little or no significance to the decision that is to be made”. VEAL at [17] and see at [20]
[41]In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
[42]The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs[2005] HCA 72; (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
[43]The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection[2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ).”
Counsel for the applicant placed further reliance upon the joint judgment of Mortimer and Jackson JJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 at [56] – [78] inclusive, where it was said:
“[56]CSR16 represents the law on the question of the correct approach to s 473DD(b)(ii), unless this Court declares the law differently. The standard that a three-member bench should apply to a challenge to a decision of a single judge, where both are exercising appellate jurisdiction, remains something of a vexed question. However, it is important to commence with the way CSR16 has been treated by other judges on this Court, to this point.
[57]The Full Court has referred to CSR16 without disapproval: see BDY18 at [55], although in a context where the Minister did not press the argument which might have required the Full Court to engage with the reasoning in CSR16.
[58]CSR16 was also cited with apparent approval by the Full Court in Minister for Immigration and Border Protection v CLV16[2018] FCAFC 80; 260 FCR 482 at [17]. As the first respondent’s submissions note, the decision has also been referred to without disapproval by a large number of single judges exercising appellate jurisdiction, and on a number of occasions with express approval or agreement: see BNV18 v Minister for Home Affairs [2018] FCA 1788 at [17]; AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053 at [38]; DUZ17 v Minister for Home Affairs[2019] FCA 1593 at [56]; FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2019] FCA 1620 at [60]- [61]; BOS17 v Minister for Immigration and Border Protection[2020] FCA 75 at [43]; ALJ18 v Minister for Home Affairs[2020] FCA 491 at [29]; ABH18 v Minister for Home Affairs[2020] FCA 620 at [43].
[59]While CSR16 may not properly be described as a decision of long standing, it is a decision which has been referred to and applied on a large number of occasions, because of the volume of migration cases in this Court. In other areas, it may take a decade for a case to be cited that often. It is therefore relevant to take into account that the decision has been referred to and relied upon consistently since 2018, in the same way the authorities discuss this matter in situations where a court is deciding whether there are compelling reasons to depart from a previous decision: see Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[2020] FCAFC 122 at [125]- [126]. It is also relevant to note that CSR16 was not the subject of any special leave application.
[60]Comity in the exercise of judicial power at levels considered equivalent (intermediate appellate courts, appellate jurisdiction) serves institutional purposes, “uphold[ing] the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges”: see Hicks v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 757 at [74]- [76] (affd [2004] FCAFC 114; 138 FCR 475), cited with approval in Batterham v QSR Limited[2006] HCA 23; 225 CLR 237 at [73] and Frugtniet v Australian Securities and Investments Commission[2017] FCAFC 162; 255 FCR 96 at [93].
[61]Whatever be the appropriate descriptor for the level of judicial conviction which must be held as between courts exercising appellate jurisdiction but constituted by different numbers of judges, there would need to be, in our respectful opinion, compelling reasons to depart from CSR16 in the present circumstances. Otherwise, principles of judicial comity, institutional integrity and of the settled and consistent application of the law are brought into question.
[62]In our respectful opinion, for the following reasons, CSR16 is correctly decided, and Bromberg J’s construction of s 473DD(b)(ii) is correct.
[63]A number of points should be made about the legislative scheme in Pt 7AA which inform the proper construction of s 473DD(b)(ii).
[64]In Plaintiff M174/2016 v Minister for Immigration and Border Protection[2018] HCA 16; 264 CLR 217 at [22], the plurality described the “primary rule” applicable to the Authority’s review under Pt 7AA:
Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE.
[65]At [27], noting that it was possible for the Secretary, in the review material given to the Authority, to provide information that was not before the delegate, the plurality said:
Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.
(Emphasis added.)[66]In that context, the plurality then described s 473DD as imposing “restrictions on when the Authority can consider new information”: at [28]. That position, as the Minister correctly submitted on the appeal, reflects a policy decision articulated in the extrinsic material which introduced Pt 7AA to limit the circumstances in which the Authority can consider new information: see Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [909].
[67]Having explained at [29] that the “exceptional circumstances” “precondition set out in s 473DD(a) must always be met”, the plurality then said of s 473DD(b) (at [34]):
Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.
[68]Two matters should be noted about this passage, and the proper approach described by the plurality. First, what is contained in s 473DD is described as a “precondition”. That is, although it is part of the review function of the Authority, the exercise of power under s 473DD comes before the Authority can “consider new information that is given to it” by a referred applicant. It is thus part of the Authority’s preliminary decision-making about what is the complete scope of the material it will be considering on its review for the purpose of its statutory task, which is, as the plurality in Plaintiff M174 outlined at [17], to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.
[69]As the plurality observed at [32], the precondition in s 473DD(b)(i) needs “[n]o explication”. It is a matter of objective fact, and straightforward. It would be curious if the precondition in s 473DD(b)(ii) were not also treated as involving a relatively straightforward assessment, being, as we have explained, a preliminary step the Authority must take before settling on the scope of the material which is to be before it on its review, so that it can consider afresh the protection visa application, and make its own decision.
[70]Thus, the parameters for the Authority’s review task are set by the “primary rule” in s 473DB, read with the additional powers conferred on it by ss 473DC, 473DD and 473DE. The purpose of each of those additional powers is the same: it is to regulate the circumstances in which the Authority can depart from the “primary rule” in s 473DB. In each case, in deciding whether or not to exercise those powers, the Authority is doing so for the purposes of deciding what should be the scope of the material available to it for its review task.
[71]The precondition in s 473DD(b)(ii) is but one aspect of these powers, and the approach taken to its construction should reflect its purpose as we have described it. In substance, it is no different to the Authority deciding whether to invite a person to an interview under s 473DC(3)(b): in both cases, the Authority is deciding what material should be before it on its review.
[72]Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant – in all these circumstances the Authority is entitled to reflect on and assess the review material already before it – but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions – in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
[73]However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own – fresh – consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
[74]As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.
[75]That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.
[76]Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
[77]Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
[78] Specifically, as to the Minister’s submissions:
(a) It is not to the point that the word “credible” is not qualified. What matters is, as we have explained, the meaning of the word Parliament has chosen to use, which is “credible”. As Bromberg J identified, its meaning is not the same as “true”.
(b)The approach in CSR16 does not require any additional or different text to be implied into s 473DD(b)(ii). It simply requires assigning the appropriate meaning, in context, to the word “credible”.
(c) There is no inconsistency between the approach in CSR16 and the proposition that the Authority may examine other review material as part of its exercise of power under any of ss 473DC; 473DD or 473DE. However, the Authority must not in substance embark on the conduct of its review – making a fresh decision – by using material to determine a visa applicant’s credibility that it then decides to exclude from the review. The scheme does not intend that this can occur. That would be a substantively unfair process, and there would need to be clear words to give this part of the scheme such an operation.
(d) The purpose of s 473DD is not undermined at all by construing s 473DD(b)(ii) in the way we have explained. This argument ignores any holistic consideration of s 473DD, which erects a considerable threshold to the receipt of new information. Further, the purpose of the scheme of Pt 7AA would be undermined by an approach that enabled the Authority to make adverse credibility findings against a visa applicant which were material to the outcome of the review on the basis of “new information” which then did not form part of the review material before it. That would be inconsistent with s 473DB.”
At [21] – [39] of its reasons, the Authority carefully considered, and analysed, the applicant’s new claims. It found as follows:
“[21]In her statement dated 12 June 2020, applicant 2 outlines new confidential claims of sexual assaults that she had suffered by the army, when they visited the home looking for her husband, who was at work. I note that applicant 1 had claimed that he feared his wife and daughters would be at risk of harm as vulnerable females. The delegate rejected those claims in part on the basis that applicant 2 and her daughters would be returning as a family with applicant 1 and not as a female headed household. It was submitted the new information concerning past rapes and assaults of applicant 2 further supported applicant 1’s claim, that it was not just based on generalised violence (but as a past victim of violence) and that it was conclusive evidence that applicant 2 holds a subjective fear of persecution on account of being a Tamil woman.
[22]Essentially, applicant 2 claimed that while her family checked her husbands’ character before they married, they did not check on details of his work and did not know that he worked in LTTE controlled areas. After applicant 1 and 2 married, the family proceeded to the marital home (applicant 1 and mother in law’s house in [name of place omitted]) by bus. When they disembarked, army officers also disembarked and walked behind them to see where they went. Applicant 2’s mother became worried and asked if there was a problem, but the mother in law (applicant 1’s mother) promised she would take care of applicant 2. After applicant 2 had married and moved to live with her husband and mother in law in [name of place omitted], between June 2008 and June 2009 she was raped around 15 times by army officers who were looking for her husband who worked in LTTE areas and was often away. Applicant 2 suspected the rapes conceived her pregnancy miscarriage in October 2008 and also her daughter born in November 2009. Applicant 2 has not told her husband, but in 2017/18 she suspected her sister in law told applicant 1 because of accusations applicant 1 made against applicant 2 and he asked why she had not told him; applicant 2 denied to him anything serious happened to her. Applicant 2 confronted her mother in law about why she told her daughter and the mother in law said she unintentionally disclosed it. Applicant 2 kept it a secret and fears if applicant 1 knows the family will be divided and applicant 1 will leave; when applicant 1 is drunk he accuses applicant 2 of conceiving their daughter as a result of rape. In 2018 and 2020 applicant 2’s sister in law made adverse comments about applicant 2’s pregnancy by army officers. Applicant 2 could not seek help because it was authorities causing the harm, and was unable to see a doctor because doctors would have spread the news to the village and society would have treated her worse than an animal. She feared sexual assault again if returned and the same for her daughters (aged 11 and 6) who were attractive and may attract predatory men, including the army. She feared the same men would come looking for her and her husband if they know she has returned. She feared they would harm her daughters. Army officers are still based in the area and her parents live close to an army camp, about 5 minutes away. The LTTE occupied the army camp until around the time she married, but now the army occupies it. If assaulted in the future, she could not report it as there is no police protection for Tamil women who have experienced sexual assaults. She has nightmares, worries, cannot sleep or eat and is scared when she hears a door banging, and seeing the difference between police in Australia and Sri Lanka made her recall her experiences and she felt upset.
[23]Applicant 2 also provided her patient health summary, dated 15 June 2020, from her general practitioner which lists current medications and medical history.
[24]Applicant 2 explained that it was distressing to remember and tell her RAILS lawyer about the sexual assaults and was reluctant to tell everything that happened as she does not want to think or remember it and has been holding it inside for years. She was scared people would ridicule and shame her if they knew. However, she decided to disclose the confidential information for her peace of mind and because she did not want her daughters to experience the same thing and she will not return to Sri Lanka, no matter what, but would rather die. Applicant 2 stated that after immigration refused the visas she spoke to her lawyer, N at RAILS and told a little bit about the confidential claims but they were unable to help because of the very short time remaining to send the information in writing to the IAA; and due to the applicant’s inability to read and write English, she could not provide the information to the IAA without help and they could not afford to pay a lawyer, as RAILS was a free legal service.
[25]Applicant 2 stated she had counselling sessions after the delegate’s refusal in 2017. The counsellor, who spoke Tamil, visited her at home for some sessions. She also attended sessions at the centre with a male interpreter but was unable to speak openly about the sexual assaults. With the help of the RAILS lawyer she asked her counsellor for a female interpreter and will try to open up about the sexual assaults to relieve the mental pressure and emotional distress and has a counselling session with the counsellor on Monday (which would have been 15 June 2020). She has nightmares and cannot sleep or eat if she thinks about the sexual assaults and is scared of police officers because of her experiences. Seeing the differences between Australian police and Sri Lankan police made her recall her Sri Lankan experience and feel upset. When she thinks about her sexual assaults this worsens her physical health because she is worried about what will happen to her and her daughters if returned.
[26]It was submitted the information meets s.473DD because it is evidence of significant torture and trauma, credible personal information which may have affected the delegate’s consideration of the risk of gender based violence to the applicants; applicant 2 did not disclose it due to stigma and shame and fear and if her husband became aware of it he might separate from her or kill himself. Applicant 2 provided the information as a response to the delegate’s decision and on the condition it is kept confidential from applicant 1. Her reluctance to speak out is consistent with country information that victims are reluctant to report to the police due to stigma and ostracisation from the family.
[27]I have carefully examined the new claims, and the applicant’s explanations and the representative’s submissions on why they were not made earlier. I acknowledge that applicants are sometimes reluctant to report claims of this kind to authorities or others due to stigma, trauma, shame, and fear of ostracism. I acknowledge and am mindful of the associated trauma and stigma and that sexual assault victims may for good reason be reluctant to disclose such information and that such situations may readily fall within s.473DD parameters. Further, I acknowledge the country information before me of sexual violence, in Sri Lanka particularly during the conflict, and reluctance in reporting such.
[28]However, for the reasons set out below I find the new claims in this case lacking credibility, and the explanations unconvincing, and I am not satisfied there are exceptional circumstances that justify considering the new information.
[29]I note the applicants were legally represented by the same experienced and refugee specialist lawyers, RAILS, in the application and the lawyer was female. Applicant 2 completed and signed the application form and confirmed that she had no separate claims of her own. The application confirmed applicant 2 had legal assistance and the application had been interpreted. She was represented by a female legal representative when lodging the application.
[30]To the IAA, applicant 2 stated she told her female lawyer (apparently the same one who represents her now, as she has the same name) of some of the confidential claims after the delegate’s decision, but they were unable to help her present the information to the IAA because of the short time frame remaining to send information in writing to the IAA and due to her English inability could not provide the information without help and she could not afford to pay a lawyer either. I have significant concerns about this. While applicants are informed they have 21 days in which to provide their submissions or new information to the IAA, I note in this case the applicants had four months to provide their information. The delegate’s decision was in October 2017 and the first IAA decision was not made until February 2018, some 4 months later. I do not accept the time frames were too short or that the applicant was unable to put those claims forward in that period or seek an extension of time to do so.
[31]Further, and significantly, I find it difficult to believe that if the applicant had mentioned such claims to RAILS, RAILS would not have assisted her to put those claims to the IAA, even in a short time frame, or sought an extension of time. I note there is no corroboration from her lawyer (who I believe to be the same one who represents her now) that such information was provided to her and that they told her they were unable to provide assistance. I find it difficult to believe that disclosure of such information to reputable refugee lawyers (and the same lawyers who had represented them before the delegate) would not have been acted upon, even if only there was only a short time frame remaining. Even with English or financial difficulties, I find it difficult to believe that such information (or request for extension) would not have been communicated to the IAA.
[32]The applicant stated that after the delegate’s refusal decision she was seeing a female Tamil counsellor at home. She also saw counsellors at the Stones Corner service with a male interpreter. I acknowledge the reluctance in disclosing such information when her husband was present or to a male interpreter and the counselling sessions were in response to the delegate’s refusal decision. However, I consider it odd that applicant 2 should decide to disclose only now for ‘peace of mind’, and not earlier, given the delegate’s refusal was in 2017 and the applicant’s explanation that she did not want to return as she feared the same thing for her children. I find it difficult to reconcile her claims that she could disclose it now for peace of mind and to avoid harm for her and her daughters when this would have been the situation in 2017. Further, I find it difficult to believe that given the refusal at that time, and the availability of a counsellor and a lawyer, she would not have found a way to make these claims, if true.
[33]I have considered applicant 2’s explanation and claims to fear the family will be divided if applicant 1 comes to know of the confidential claims and fear of stigma. However, based on her statement applicant 1 found out about this in 2017 or 2018. According to her statement she suspected the confidential information had been disclosed to applicant 1 by her sister in law in 2017 or 2018. Applicant 2 claimed there was friction with applicant 1 s, who made accusations about it and asked why applicant 2 had not told him and she denied the confidential information claims to applicant 1. Even considering the stigma, fear of disclosure and its consequences, if as she claimed, that applicant 1 suspected and was told of the rapes by the sister in law and made accusations about it, it is difficult to believe that if true, applicant 2 had not raised them then in her protection claims. That applicant 2 did not raise the claims, even in a general and confidential way, that leads me to doubt the genuineness of the claims. Even considering the difficulties, I consider if such claims were true, she would have provided them earlier, and I do not accept her explanations for not doing so.
[34]Finally, even having regard to country information in the review material (and new country information considered below) about sexual violence in Sri Lanka and the reluctance to disclose it, the claims themselves lack credibility on their face. For instance, it is not credible that authorities would be looking for applicant 1’s husband at home, if as he claimed he travelled through checkpoints frequently and had to unload his goods each time he crossed from LTTE to army controlled area.
[35]That applicant 2 and her mother in law would continue to stay at home alone and say nothing or seek no assistance from her husband to move or some protection, or move to her parents’ home is not credible. Further, given the claims and frequency, that she would not make any such move or seek assistance or some protection is difficult to reconcile with claims they left their home in 2013 in response to white van visits. It is also difficult to reconcile if both she and her mother in law (also claimed to have been harmed) that neither of them would take evasive action or discuss fears with applicant 1.
[36]Further, the frequency of the claimed assaults seems implausible and in particular, it is difficult to believe that no evasive action would be taken, or that it would not have been noticed or discovered or suspected by applicant 1 at the time. Further, it is not credible that applicant 1 or others did not know or suspect, particularly given claims that neighbours suspected (as they closed their doors to avoid applicant 1 and her mother in law from seeking refuge) and that on one occasion a relative had pleaded for her release.
[37]I note applicant 2 claimed the army camp was close to her parents’ home and that the LTTE had previously occupied it until around the time she married (June 2008). However, this is at odds with country information that the Government forces retook the eastern part of the country from the LTTE in July 2007.
[38]Further, it is difficult to believe that applicants 1, 2 and 3 would flee and hide at applicant 2’s parents’ house in 2013, if it was across the street or 5 minutes away from the army camp. Overall, I do not consider the information is reliable or credible.
[39]I consider applicant 2‘s claims have been fabricated to overcome the delegate’s findings on applicant 1’s claims that as they would be returning as part of a family there was not a real risk (or chance) of the female applicant’s facing harm as vulnerable females.”
(names of place omitted)
Having forensically considered such new claims in the context of the new information provided and the material already before it, which material included relevant country information, the authority found such claims to be incredible. It did so having regard to the provisions of s. 473DD of the Act, to which it specifically referred in its reasons. At [40] – [41] of its reasons, the Authority found as follows:
“[40]Overall, even having careful regard to the nature of the claims, I am not satisfied that there are exceptional circumstances to justify considering these new claims. I do not accept the explanations and I am not satisfied the information is credible. In reaching that conclusion I have also taken into account the submissions relating to the medical summary document discussed below, noting that the document itself does not corroborate these new claims.
[41]I have not considered the information.”
Significantly, the Authority found the applicant’s new claims to be incredible for the following reasons:
(a)There was an absence of corroboration by the applicant’s lawyer of the applicant’s alleged making of the claims at an earlier time, as identified by the Authority at [31] of its reasons.
(b)The applicant’s expressed reason for making the new claims at the time she did, allegedly “for peace of mind” and with a view to protecting herself and her daughters, was implausible, in that the same purported considerations motivating the applicant to make the recent claims had existed in 2017, namely at the time of the delegate’s consideration of the matter. Had the claims been real, one would have expected that they would have been raised at the earlier time “for peace of mind”.
(c)There were internal inconsistencies in the applicant’s new claims as identified by the Authority at [34] – [39] inclusive of its reasons.
(d)The applicant failed to make the claims at an early time, as would have been expected, having regard to the seriousness of the allegations made by the applicant, and the dire consequences to both herself and her daughters should such claimed events be repeated.[1]
(e)The Authority considered that the new claims had been fabricated. It was open for it to so find based upon its detailed assessment of the claims. Another differently constituted Authority could have reasonably so found.
[1] CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [21] – [24] per Thawley
In CSR16, Bromberg J found that the word “credible”, when used in s. 473DD(b)(ii) in relation to new information, ought to be construed as referring to information capable of being believed, as opposed to information which was to be believed. Respectfully, and as submitted on behalf of the Minister, His Honour was alive to the possibility that, in such context, an Authority might find, at such preliminary stage, that some new information was incapable of being believed. Bromberg J recognised such alternative option at [42] of CSR16 when His Honour referred to the judgment of the High Court in VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ, where relevantly it was said:
“[17]It follows that what is "credible, relevant and significant" information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. "Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.”
The corollary of the finding that the new information was not credible was that the provisions of s. 473DD(b)(ii) had not been engaged at such preliminary stage. The Authority was doing no more than determining that it was satisfied that the information was “evidently not credible”, consistently with the reasoning of the Court in VEAL. It was part of the Authority’s preliminary decision making process for it to assess the new information, and then decide whether it was credible or not. The fact that there was an element of finality in relation to such finding was of no moment.
The Court finds that had Parliament intended that the Authority was prevented from finding, at such preliminary stage, that new information presented to it was incredible, thereby justifying its exclusion from consideration, it surely would have so provided by the use of clear and unambiguous language to that effect. That it did not do so favours a construction of the section that allowed the Authority to reject such information, as incredible, at such stage.
The approach taken by the Authority was not inconsistent with the judgments of either the High Court, the Full Court of the Federal Court, or of the Federal Court as cited above. An Authority ought not to be so constrained in its deliberations as to be encouraged to favour one particular approach over another. Nor should the Authority be placed in the position of having to keenly seek out reasons as to why new information ought preferentially be considered in the context of whether it was capable of being believed, as opposed to, and in preference to, such new information being fairly evaluated by the Authority with a view to the Authority deciding whether the information was either credible or incredible, or put another way, whether the information was capable or incapable of being believed.
At [40] – [41] of its reasons, the Authority first found that the new information was not credible, then recorded that it had not considered such information. The Authority at [44] – [127] then analysed the applicant’s claims based upon the all of the material before the Authority. It did so in a careful and logical way.
On the question of materiality, the applicant bore the onus of establishing that if the Authority had erred in not considering the applicant’s new information, such error could realistically have resulted in the Authority arriving at a different decision. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell, Gageler and Keane JJ at [45] and [46] said as follows:
“[45]Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46]Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
Having carefully analysed and considered all of the applicant’s new claims, and having made adverse findings in relation to such claims, the Court finds that there was no realistic prospect of the Authority arriving at a different decision even if it had considered all of the new information. Even if the Authority had erred in failing to consider the new information, any such error was immaterial.
The Authority did not err in the way in which it approached the new information put before it by the applicant. It could not be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 246 CLR 611 at [130], [131] and [135]:
“[130]In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131]What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
…
[135]On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
There is no merit to Ground 2 of the Further Amended Application for Review.
As to Ground 2A of the Further Amended Application for Review, the applicant claimed that there was a reasonable apprehension of bias on the part of the Authority at the determinative stage of the review by reason of the fact that the Authority had found, after a consideration of the new information at the preliminary stage, that the new claims of the applicant lacked credibility. There is no merit to such ground.
First, it was submitted on behalf of the applicant that the Authority based its evaluation of the applicant’s claims as expressed in its reasons at [89] – [104]. That submission cannot be accepted, because those paragraphs relate not to the applicant’s claim for protection, but rather to her husband’s claims for protection. The rejection by the Authority of the husband’s specific claims cannot found a claim of apprehended bias on the part of the Tribunal in respect of the applicant’s separate and distinct claims made after June 2020, when the applicant first made her new claims. Prior to that time, the applicant’s claim for protection was as a member of her husband’s family unit, and was reliant upon acceptance of her husband’s claims. Those claims were not accepted, and hence, the Authority rejected the husband’s claims of fearing harm if returned to Sri Lanka, not the applicant’s claims.
Second, the applicant’s claims related to her fears based upon alleged past sexual assault and the prospect of it occurring again in the future. At [97] – [99] of its reasons, the Authority recorded that it had had regard to country information for the purpose of assessing whether there was a real chance that the applicant would face sexual or physical violence from the authorities or anyone else in the foreseeable future. The Authority found as follows:
“[97]While I accept that the female applicants may fear sexual assault, and that applicant 1 may hold such fear on their behalf, particularly from the military or authorities, I am not satisfied that they face a real chance of harm in that regard. They will have the protection of applicant 1 upon return. The children will have the protection of their family. Further, I note the decreased military presence overall, since the end of the war and thereafter. I note the higher military presence is in the North (according to DFAT 2019 30,000 personnel in Jaffna), however the applicants are from the East. Although security forces had a heightened state of alert in the north and east in the aftermath of the April 2019 Easter Sunday attacks (as elsewhere), I note the perpetrators have been arrested or killed and were from an extremist Islamic group, not Tamil. Further, according to DFAT 2019 the heightened security since the April 2019 attack has eased.
[98]Further, I do not accept that the applicants would come to the attention of the military, police or authorities as I do not accept that applicant 1 or any of the applicants has been or will be of interest to them. Further, I note the applicants’ extended families (including females) continue to live and work in Sri Lanka without harm. Further, I do not accept they are vulnerable females as they have the protection of applicant 1 and their family group.
[99]Having regard to the country information, submissions and evidence and my assessment of their particular circumstances, I am not satisfied that the female applicants face a real chance of sexual or physical violence from authorities or anyone else in the foreseeable future. I consider the evidence is that this has reduced significantly, is less of a problem in the East, there is less militarisation, an improvement in education and supports and is illegal under the law and the female applicants’ circumstances are such that they have the protection of applicant 1 and their family.”
Third, having decided that s. 473DD(b)(ii) had not been engaged in respect of the applicant’s new claims, it must be accepted that the Authority did not take any such new claims into account when arriving at its final decision. At [41] of its reasons, the Authority clearly stated that it had not considered such information when arriving at its decision.
Cumulatively, there was no factual basis for the claim that the Authority’s final decision had in any way been influenced by its finding, at the preliminary stage, that the applicant’s new claims lacked credibility. Nor was there any basis for the claim that the Authority might not have brought an impartial mind to its decision making process. The Authority largely relied upon the contents of country information presented to it by the applicant, or the applicant’s husband, when arriving at its adverse decision in respect of the applicant. It is a high threshold that has to be met in order for a claim of reasonable apprehension of bias to be established. As was said by Nettle and Gordon JJ in CNY17 v Minister for Immigration and Border Protection & Anor (2019) 268 CLR 76 at [56]:
“[56]The test for apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide”. A finding of apprehended bias is not to be reached lightly. The determination of whether an apprehension of bias is “reasonable” is not assisted by philosophical conceptions of the varieties of seriousness or materiality”.”
As to Ground 4 of the Further Amended Application for Review, it was asserted on behalf of the applicant that the Authority’s decision to not accept the applicant’s allegations of rape as credible personal information was legally unreasonable. There is no merit to such claim.
Ground 4 seeks to have this Court conduct an impermissible merits review of the decision of the Authority. There is no merit to such ground. The applicant’s submissions largely reflect those made in support of Ground 2 of the Further Amended Application for Review.
As to the submission that the Authority erred by failing to acknowledge the seriousness of the applicant’s rape allegations, there is no merit to such claim. The Authority clearly considered the applicant’s claims of past rape cumulatively with all of the other evidence that was before it. The Authority’s bases for rejection of the applicant’s new claims were multifactorial. That the Authority did not accept the applicant’s claims does not render the process undertaken by the Authority as being an unreasonable one. An allegation of rape in itself is a serious allegation. The Authority acknowledged the “stigma, trauma, shame and fear of ostracism” associated with allegations of rape in [27] of its reasons. It had no need to further acknowledge the seriousness of what were, self-evidently, serious claims.
The absence of evidence suggesting that the rapes did not occur as alleged by the applicant did not constitute a basis for a finding that the alleged rapes did occur. That the Authority found against the applicant was open on the evidence before the Authority. A differently constituted Authority could reasonably have made the same finding. The test for legal unreasonableness is necessarily stringent. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] explained that:
“[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11] Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 3 February 2022
J.
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