AYC18 v Minister for Immigration and Anor (No.2)
[2020] FCCA 1637
•28 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYC18 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 1637 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant departing Sri Lanka as an infant – applicant’s fears found not to be well-founded – whether the Authority erred in its consideration of the risk to the applicant as a returnee who left Sri Lanka illegally considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 473DC, 473DD |
| Cases cited: ABA15 v Minister for Immigration [2016] FCA 1419 ACF17 v Minister for Immigration [2019] FCA 1902 Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74 Applicant NABD of 2002 v Minister for Immigration (2005) 216 ALR 1 ASO18 v Minister for Immigration [2019] FCA 1909 Australian Postal Corporation v D’Rozario(2014) 222 FCR 303 BDI17 v Minister for Immigration & Anor [2018] FCCA 2162 BMP15 v Minister for Immigration [2018] FCA 1291 Buchwaldv Minister for Immigration (2016) 242 FCR 65 CEO19 v Minister for Immigration & Anor [2020] FCCA 1472 Chan v Minister for Immigration (1989) 169 CLR 379 CJS17 v Minister for Immigration & Anor [2019] FCCA 440 CJS17 v Minister for Immigration [2019] FCA 1870 DCP16 v Minister for Immigration [2019] FCAFC 91 DNQ18 v Minister for Immigration [2020] FCAFC 72 ENE17 v Minister for Immigration [2019] FCA 942 Hossain v Minister for Immigration (2018) 264 CLR 123 Maxwell v Minister for Immigration [2016] FCA 47 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration v SGLB(2004) 78 ALJR 992 Minister for Immigration v SZMTA (2019) 264 CLR 421 Minister for Immigration v MZYTS (2013) 230 FCR 431 Minister for Immigration v SZQRB (2013) 210 FCR 505 Minister for Immigration v SZTQS [2015] FCA 1069 Minister for Immigration v Yusuf (2001) 206 CLR 323 MZZAT v Minister for Immigration [2013] FCA 791 NAHI v Minister for Immigration [2004] FCAFC 10 Navoto v Minister for Home Affairs [2019] FCAFC 135 NBKT v Minister for Immigration (2006) 156 FCR 419 Shop, Distributive and Allied Employees Association v National Retail Association (No.2)(2012) 205 FCR 227 SZANK v Minister for Immigration [2004] FCA 1478 SZDWK v Minister for Immigration [2006] FCA 405 SZTAL v Minister for Immigration; SZTGM v Minister for Immigration (2017) 262 CLR 362 SZTAP v Minister for Immigration(2015) 238 FCR 404 VAS v Minister for Immigration [2002] FCAFC 350 |
| Applicant: | AYC18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 49 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 June 2020 |
| Date of last submissions: | 6 July 2020 |
| Delivered at: | Sydney, via telephone to Perth |
| Delivered on: | 28 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A McBeth |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondents: | Ms K Hooper |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 15 May 2020 and 25 June 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 49 of 2019
| AYC18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 29 January 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male citizen of Sri Lanka. He was born in Sri Lanka in 1989 and moved to India as a refugee in 1990.[1] He arrived in Australia as an unauthorised maritime arrival on 5 November 2012 and, on 11 May 2016, lodged a temporary protection visa application.[2] The applicant claimed to fear harm, in summary, because of his Tamil ethnicity.[3]
[1] see, eg, Court Book (CB) 69, 78
[2] CB 29
[3] see CB 84 [2]
The delegate refused the applicant’s temporary visa application on 26 April 2017.[4] Relevantly for the present application, the delegate considered whether the applicant faced a real chance or real risk of serious or significant harm on the basis of the applicant’s illegal departure from Sri Lanka.[5]
[4] CB 137
[5] CB 140-142
The delegate’s decision was referred for review by the Authority. On 14 February 2018, the Authority affirmed the delegate’s decision.[6] Paragraphs [20]-[33][7] are of relevance to Grounds 1 and 2 of the present application to the Court.
[6] CB 163
[7] CB 168-170
The Authority’s decision was set aside by orders of this Court dated 16 November 2018.[8] The Minister conceded that the first-constituted Authority had not considered the applicant’s illegal departure claim against the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).
[8] CB 177
The applicant’s representative provided written submissions to the Authority as constituted following the remittal, on 31 December 2018. Relevantly,[9] the representative addressed the applicant’s illegal departure claim. It was submitted that even a brief period of detention on remand gave rise to a real risk of significant harm as defined by s.5(1) of the Migration Act.
[9] at CB 183-184
On 29 January 2019, the Authority made its decision.[10]
[10] CB 202
The Authority found that s.473DD of the Migration Act 1958 (Cth) (Migration Act) was satisfied in relation to the applicant’s written submissions dated 31 December 2018 and considered those submissions and the country information that they cited.[11] It also exercised its discretion in s.473DC(1) to get new information being a report of the Department of Foreign Affairs and Trade (DFAT) dated May 2018 and was satisfied there were exceptional circumstances to justify considering that report.[12]
[11] see CB 204 [7]
[12] section 473DD(a), CB 204 [8]
The Authority found the applicant presented as a credible witness. It accepted his evidence regarding his family’s travel to India and his life there, and regarding his family’s current whereabouts.[13]
[13] CB 205 [14]
The Authority had regard to the applicant’s submissions concerning, relevantly, the risk of harm to persons with even remote Liberation Tigers of Tamil Eelam (LTTE) links. The Authority considered, however, that the chance of the applicant being perceived as a person with LTTE links, or otherwise being a person of any interest to the authorities and harmed for such reason, was remote.[14]
[14] CB 206 [18]
In so finding, the Authority had regard, among other things, to various sources of country information which it cited, (including but not limited to 2017 and 2018 reporting by DFAT, and a 2017 report of the United Kingdom Home Office) concerning the situation in Sri Lanka following the end of the civil war. The Authority also had regard to the information referred to, and the submissions advanced, in the applicant’s written submissions to it.[15] The Authority found, having regard to the applicant’s cumulative profile, that the chance of him being harmed was “very remote”.[16]
[15] CB 206-208 [19]-[22]
[16] CB 208 [23]
The Authority appreciated, and accepted, that the applicant had no immediate family in Sri Lanka. It found, however, that:[17]
…[o]n his evidence at the protection visa interview, it seems that his mother has some contact with at least one cousin who was able to obtain and provide documents for the applicant, and so I do not accept that he would be entirely without any family connection.
[17] CB 208 [24]
The Authority accepted that the applicant and his family departed Sri Lanka illegally by boat when the applicant was an infant. Relevantly, it found at [25]-[27]:[18]
… The information indicates that returnees suspected of unlawful departure undergo investigation at the airport and are then transferred to the Magistrates Court. Some may spend a number of days in custody pending their appearance before a magistrate or granting of bail, which can be granted on personal surety although in some cases a relative may be required to act as [209] guarantor. The information also indicates that returnees who have pled not guilty to illegal departure may need to attend court or report to police on further occasions, which can involve travel and legal costs. DFAT has advised that the same processes apply to returnees who travelled first to India and then on to a third country.
I accept that the applicant will undergo an investigation at the airport on return, and will be identified as a person who departed Sri Lanka illegally. The applicant is in possession of documents including his birth certificate and, through his mother, would be able to identify at least one relative in Sri Lanka and I find that the applicant would be able to establish his identity should that be required. For the reasons given above, I am not satisfied there is any prospect of him otherwise being identified as a person of any interest and find that any investigation will quickly reveal this.
The applicant was less than a year old at the time of his departure, and I have some doubt that the immigration laws would be applied to a person who departed Sri Lanka close to 30 years ago as an infant, but I cannot be satisfied of that so will proceed on the basis that the applicant will be subject to charges for his unlawful departure. It would be apparent from his age at the time that he was merely a passenger rather than having any sort of involvement with people smuggling and I find that the applicant will be charged with an offence and ultimately fined. Given his age at the time of the offence, any fine imposed could be expected to be at the lower end of the scale. I accept on the country information that it is possible he may also be detained pending bail, but that would only be in the event that a magistrate was not available to hear the case such as due to a weekend or public holiday, or he pleaded not guilty and needed to wait for a relative to come to court to act as guarantor rather than having bail granted on personal surety. I am not satisfied on the evidence that there is any more than a remote chance of the applicant being detained for more than a brief period, of several days at most.
(emphasis added)
[18] CB 208
The Authority found that the applicant would be detained for, at most, several days.[19] It found that the imposition of a fine, the further costs that may be associated with ongoing court appearances or reporting should the applicant elect to plead not guilty, and the brief period the applicant would spend in detention, did not amount to serious harm either individually or cumulatively. Further, the treatment arose from the non-discriminatory application of a general law and was therefore not for one of the reasons in s.5J(1)(a) of the Migration Act or systematic and discriminatory conduct as required by s.5J(4)(c).[20]
[19] CB 210 [29]
[20] CB 210 [29]
The Authority separately considered the applicant’s claims by reference to the complementary protection criterion in s.36(2)(aa) of the Migration Act. It found, relevantly, that:
a)the applicant’s treatment in relation to his illegal departure did not involve the requisite intention necessary to satisfy the definition of “significant harm”;[21] and
b)in any event:[22]
considering the brevity of the detention the applicant will experience, even taking into account the conditions of Sri Lankan prisons, I am not satisfied that spending a number of days detained in such conditions, together with the fine he will be required to pay and associated costs of attending court or police, would involve the level of pain, suffering or humiliation described in the definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
[21] CB 211 [36]
[22] CB 211 [36]
The current proceedings
These proceedings began with a show cause application filed on 11 February 2019. At the trial on 18 June 2020, the applicant relied upon an amended application filed on 15 May 2020. There were three particularised grounds in the application as amended:
1. The Immigration Assessment Authority (IAA) failed to consider an integer of the applicant’s claims arising from the material, namely whether the applicant had a member of his family in Sri Lanka who would be prepared to act as a guarantor for his bail and come to collect him so he could be released.
Particulars
a. The IAA accepted that the applicant would be arrested and charged with illegally departing Sri Lanka.
b. The IAA had before it and referred to country information that the Sri Lankan authorities may require a relative to act as guarantor for the applicant’s bail and for a relative to come to court to collect him.
c. The information before the IAA was that the applicant’s family had fled to India when the applicant was an infant, that his mother and sister will still in India, that his father was deceased, and that his other siblings were in Australia and France.
d. The IAA failed to consider whether there was any member of the applicant’s family who was willing and able to act as guarantor and to collect him from court to secure his release.
2.Alternatively to ground 1, if the IAA is found to have made an implied finding that a family member in Sri Lanka would be willing and able to act as a guarantor for his bail and come to collect him so he could be released, there was no rationally probative evidence before the IAA to support such a finding.
Particulars
a. The applicant repeats particulars (a) to (c) in ground 1.
b. There was no rationally probative evidence before the IAA to support a finding that the applicant had a family member who would be willing and able to act as a guarantor for his bail and come to collect him so he could be released.
3. The IAA erred in its construction of the ‘real risk’ test in the context of its consideration of the DFAT Country Information Report.
Particulars
a)The IAA relied on an assessment in the DFAT Country Information Report on Sri Lanka dated 23 May 2018 (‘DFAT Report’) that “the risk of torture or mistreatment for the majority of returnees is low” as the basis for a finding that the applicant did not face a real risk of significant harm in the form of torture.
b) The IAA failed to have regard to the explanation of terms in the DFAT Report where ‘low risk’ is defined to mean ‘DFAT is aware of incidents but has insufficient evidence to conclude they form a pattern.’
c) By equating the DFAT Report reference to ‘low risk’ to a finding that the applicant did not face a real risk of torture, the IAA erred in its construction of the real risk test required by s 36(2)(aa) of the Migration Act 1958 (Cth).
Having regard to the course of argument at the trial I permitted the applicant to add a fourth ground. That was done on 25 June 2020:
4.The IAA failed to reach a state of satisfaction lawfully, in that it relied on outdated and superseded country information in the 2017 DFAT Report in preference to the current information in the 2018 DFAT Report without providing any justification for doing so.
In addition to the court book filed on 27 March 2019, I received into evidence two affidavits. The first is the affidavit of Reuben Saul Jahnke made on 14 May 2020, to which is annexed the 23 May 2018 DFAT Country Information Report relating to Sri Lanka (2018 DFAT Report). That Report was before the Authority. The second is the affidavit of Sara Anicic made on 20 May 2020, to which is annexed the 24 January 2017 DFAT Country Information Report on Sri Lanka (2017 DFAT Report) which was also before the Authority. There are material differences between the two Reports. The Authority’s use of the Reports is of some importance in this case.
I was assisted by pre-hearing written submissions filed by both the applicant and the Minister and helpful oral submissions made by the parties’ representatives at the trial on 18 June 2020. Those were supplemented in relation to Ground 4 on 6 July 2020.
Consideration
Ground 1 – did the Authority overlook an integer of the applicant’s claims?
Applicant’s contentions
The Authority accepted that the applicant had departed Sri Lanka illegally and that he would be identified as having done so upon his arrival at the airport in Sri Lanka and would be subject to criminal charges on that basis.[23]
[23] CB 208-209 [25]-[27]
The Authority further found:
I accept on the country information that it is possible he may also be detained pending bail, but that would only be in the event that a magistrate was not available to hear the case such as due to a weekend or public holiday, or he pleaded not guilty and needed to wait for a relative to come to court to act as guarantor rather than having bail granted on personal surety. I am not satisfied on the evidence that there is any more than a remote chance of the applicant being detained for more than a brief period, of several days at most.
The country information on which the Authority relied for that finding was the 2018 DFAT Report. Paragraph [5.32] of that Report provides:
Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court.
The Authority made no finding about whether the applicant would plead guilty or not guilty, nor could it have, given that there was no evidence on that point before it. It was therefore a real possibility that the Authority needed to consider that the applicant would plead not guilty and be remanded in custody until a family member was prepared to come to court to collect him and give a guarantee. The Authority at [27] expressly acknowledged that possibility.
Despite having acknowledged that it was possible that the applicant would be remanded until a relative could come to court, the Authority failed to deal with the evidence, which it had already accepted, that the applicant’s family were not in Sri Lanka.
It was on the basis that the applicant would be detained only briefly that the Authority found that he did not face a real risk of significant harm.
The treatment of the relevant part of the 2018 DFAT Report (and the differently worded sections of previous DFAT reports on the same issue) by the Authority and the Administrative Appeals Tribunal (Tribunal) has been considered by Courts on multiple occasions. The key cases include:
a)ABA15 v Minister for Immigration[24] and
b)Minister for Immigration v SZTQS,[25] in which the treatment of the information was held to give rise to jurisdictional error; and
c)SZTAP v Minister for Immigration[26] and
d)DCP16 v Minister for Immigration,[27] in which no jurisdictional error was established.
[24] [2016] FCA 1419
[25] [2015] FCA 1069
[26] (2015) 238 FCR 404
[27] [2019] FCAFC 91
In none of those cases did the Court find that any of the earlier decisions reaching a contrary conclusion was wrongly decided. Rather, each case turned on the use the decision maker made of the information and the manner in which it was said to have erred.
The facts of the present case are said to align most closely to ABA15. Indeed, the Authority in the present case relied “even more heavily on the presumption of early release of the applicant” than the presumption that was found to give rise to jurisdictional error in ABA15, and furthermore, the issue of the availability of family members was more prominent in the present case than in any of the other cases where this issue has arisen.
Charlesworth J in ABA15 held that the question of the availability of a family member was a critical issue, because it was the basis on which the Tribunal assumed that the applicant’s time in custody would be brief, which formed the parameters of the Tribunal’s assessment of his treatment.[28]
[28] ABA15 at [50]
The location of the applicant’s family members outside Sri Lanka was a prominent part of the applicant’s case in the present case, unlike any of the other cases that have dealt with this issue.
In DCP16, the Authority relied on an earlier version of a DFAT country report on Sri Lanka for the proposition: “Returnees who plead not guilty are immediately granted bail on personal surety, although they may be required to have a family member act as guarantor.”[29]
[29] DCP16 at [90]
There was no mention in DCP16 of the need for a family member to attend court in person, as distinct from acting as guarantor for a personal surety.[30] That is said to be a critical factual difference between the case of DCP16 and the present case.
[30] DCP16 at [90] and [95]
The applicant submits furthermore, that in the present case, the Authority expressly accepted reports about the continued use of torture on detainees in criminal cases in Sri Lanka. Its finding that the risk of torture was no more than remote was based on only two matters: first, that DFAT had assessed that the risk of torture for the majority of returnees was low (which finding is the subject of Ground 3); and secondly, that the period of the applicant’s detention would be brief.[31]
[31] CB 209 [28]
The latter reasoning is said to have depended entirely on the finding that the applicant would not be remanded for more than a few days, consistent with Charlesworth J’s reasoning in ABA15.
The applicant submits that it follows that, but for the brevity of the applicant’s detention, which was a finding reached by failing to consider the capacity of any family members to attend court to secure the applicant’s release, the Authority may have been persuaded that the applicant faced a real chance of serious harm or a real risk of significant harm. Accordingly, the Authority’s error is said to have been material to its decision.
Minister’s contentions
The applicant never claimed that he would not be able to secure his release on bail, whether because of the unavailability of a relative to come and get him or otherwise, if he were to be held on remand on charges concerning his illegal departure from Sri Lanka.
The information relied on by the Authority also did not positively necessitate that a family member both act as guarantor and attend court; it said this “may” be required. The relevant paragraphs of the 2018 DFAT Report are [5.32]-[5.34]. Paragraph [5.32] is as follows:
5.32 Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.
(emphasis added)
At its highest, the applicant: if he were to plead not guilty, and if he did not provide a personal surety, may have needed a family member to act as his guarantor, and may have needed to wait for that guarantor to come to court.
Furthermore, the Authority found that the applicant did have a family member in Sri Lanka, being his cousin, who his mother had been in contact with and who had facilitated the provision of identity documents to the applicant.[32]
[32] CB 208 [24]; 209 [26]
In DCP16, the Full Federal Court (Beach, O’Callaghan and Anastassiou JJ) considered similar arguments to those advanced by Grounds 1 and 2, but within the framework of alleged legal unreasonableness. At [97]-[98], their Honours held:
Further, as to a family member acting as a guarantor, contrary to the appellant’s submission the Authority did not make any assumption that a family member would act as guarantor. The country information was that the appellant may be required to have a family member act as guarantor and that is all the Authority said. The question of whether a family member would act as guarantor was not critical to the Authority’s decision (SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404 at [79] per Robertson and Kerr JJ).
On the question of the guarantee, the Authority was dealing with a triply contingent hypothetical. First, the appellant had to plead not guilty. If he pleaded guilty, he would be fined, with the fine able to be paid by instalments; no guarantee question would arise. Second, if he pleaded not guilty, he could be released on his own personal recognizance. In that eventuality, no guarantee would be required. Third, the guarantee question would only arise if he pleaded not guilty and his own personal recognizance was not sufficient. Now in that eventuality, and given that no immediate payment of money would be required from a guarantor, it might be expected that a family member may act as guarantor to secure the appellant’s release. But all of this is in the realm of a hypothetical which the Authority did not need to speculate about or discuss in detail.
Their Honours distinguished ABA15 on the basis that the Authority’s finding was not to the effect that a family member would be required to act as guarantor and, therefore, any implicit finding about whether a family member would act as guarantor was not a critical step in the Authority’s reasons.[33] Further, their Honours considered at [100] that ABA15 may go too far and, that:
it may not be necessary for a decision-maker to have positive evidence that a family member is willing to act as guarantor for a person (cf ABA15 at [52]). Rather, if there is evidence that a person has family in the country of return, a decision-maker may permissibly reason that a family member may be prepared to act as guarantor (if that is required), unless the person puts forward reasons why the family member cannot or will not do so. But to so reason may first require that the decision maker has put the person on notice as to the guarantee question.
[33] DCP16 at [100], cf ABA15 at [53], [57] and [58]
In DCP16, the Authority gave independent reasons for rejecting the referred applicant’s claims. They were materially identical to the independent reasons given by the present Authority.[34] Their Honours in DCP16 held, at [103], that those independent reasons “provide an independent basis for the Authority’s rejection of the appellant’s claims concerning his illegal departure from Sri Lanka”.
[34] CB 210 [29] and CB 211 [36]
In ACF17 v Minister for Immigration,[35] Moshinsky J considered a proposed ground of appeal alleging that the Authority had failed to consider whether there was a family member able and willing to be a guarantor for the applicant. His Honour found, for five reasons, all of which apply equally to this case, that this argument had no reasonable prospect of success.
a)first, the relevant country information in ACF17 said that “the returnee ‘may’ be required to have a family member act as guarantor”. Also, other material and evidence before the Authority “did not state or indicate that a family member would not be able to do so”;[36]
b)Secondly, his Honour found, at [29], that:
…unlike ABA15, this is not a case where any implicit finding that a family member would provide surety for bail, was a critical step in the Authority’s finding that any period of detention would be brief. In ABA15, the Tribunal found that bail is routinely given on the accused’s own recognisance, although a family member “is also required to provide surety”: ABA15 at [46]. In contrast, in the present case, the Authority found that in most cases where a returnee pleads guilty, they are immediately granted bail on personal surety, or they “may” be required to have a family member act as guarantor. In these circumstances, any implicit finding about whether a family member would act as guarantor was not a critical step in the Authority’s reasons: see DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (DCP16) at [100] per Beach, O’Callaghan and Anastassiou JJ. See also at [101] and [102].
c)thirdly, his Honour at [30] endorsed the reasoning in DCP16 at [100] that ABA15 may go too far;
d)fourthly, the Authority gave independent reasons for rejecting the applicant’s claims;[37]
e)fifthly, SZTQS was also distinguishable, as the Authority found that the applicant “may” be required to have a family member act as guarantor whereas in SZTQS the Tribunal’s finding was that a “family member is also required to provide surety”.[38]
[35] [2019] FCA 1902
[36] ACF17 at [28]
[37] ACF17 at [31]
[38] ACF17 at [32]
The following authorities are also said to support the Minister’s submissions in the present case:
a)CJS17 v Minister for Immigration[39] at [25] (dismissing an appeal from this Court CJS17 v Minister for Immigration & Anor[40]);
b)ENE17 v Minister for Immigration[41] at [53]-[57]; and
c)ASO18 v Minister for Immigration[42] at [21].
[39] [2019] FCA 1870
[40] [2019] FCCA 440
[41] [2019] FCA 942
[42] [2019] FCA 1909
SZTQS, where a breach of s.425(1) was demonstrated, is said to be distinguishable in light of the accepted facts.[43] ABA17 is also said to be factually distinguishable, in particular for reason of the matters identified at [48]-[50] of that case.
[43] see [43]-[44]
The Minister submits that, contrary to the first ground of review, there was no “integer” of the applicant’s claims concerned with “whether the applicant had a member of his family in Sri Lanka who would be prepared to act as a guarantor for his bail and come to collect him so he could be released”. Nor, for the reasons above, was this an issue that factually arose on the Authority’s findings.
Ground 2 – was there any evidence to support a finding that the applicant had a family member available in Sri Lanka to act as a guarantor?
Applicant’s contentions
In the alternative to Ground 1, should this Court find that the Authority implicitly found that the applicant had a family member who could attend court in order to secure his release, the applicant contends that any such finding was not open to the Authority on the evidence before it.
The Authority accepted that the applicant’s father was deceased, his mother and sister lived in India and his other two siblings lived in Australia and France.[44]
[44] CB 205 [14]; referring to evidence including the application form at CB 70 and the applicant’s statement at CB 85 [15]-[16]
The only other evidence before the Authority about the whereabouts of relatives of the applicant referred to family members who had been killed in Sri Lanka years earlier, including the applicant’s grandmother, uncle and cousin.[45]
[45] CB 205 [14]
The applicant submits that there was no evidence before the Authority that could rationally support a finding that there was a family member of the applicant who was present in Sri Lanka and would be willing and able to attend court to secure the applicant’s release on bail. If the Authority is held to have made such a finding, such finding is said to have reached well beyond the material before the Authority.[46]
[46] DNQ18 v Minister for Immigration [2020] FCAFC 72 at [53]
In light of the centrality of the finding that the applicant would be detained only briefly to the Authority’s disposition of the review, the erroneous implied finding that a family member would be able to attend to secure his release is said to constitute jurisdictional error.
Minister’s contentions
In Maxwell v Minister for Immigration,[47] Perry J summarised relevant authority on the “no evidence” ground as follows, at [54]:
… It is not the case that the “no-evidence” ground is established by a mere insufficiency of evidence to support a finding, even if the evidence is slight: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]- [19] (Gray, Moore and Weinberg JJ). There must be no evidence at all on which the finding could have been based: ibid. As I explain below, there was some evidence to support the finding here. Secondly and in any event, a jurisdictional fact must be involved before a jurisdictional error based on the “no-evidence” ground can be established: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [39] (Gummow and Hayne JJ, with whose reasons Gleeson CJ agreed at [1]). As Madgwick J held in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 (SZAPC) at [57] in summarising the effect of the High Court authorities: “[a] ‘no evidence’ attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends’, that is, if there is no evidence to support a finding of a jurisdictional fact” (quoting Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [36]). Yet nothing in the Act makes the question of whether there is access to health and welfare services a precondition to the exercise of jurisdiction by the Minister to cancel a visa. …
(emphasis added)
[47] [2016] FCA 47
A “no evidence” ground of review is not established merely by pointing to an insufficiency of evidence; there must be no evidence at all on which the impugned finding could have been based.[48] Further, a decision-maker is entitled to act upon both direct evidence and to draw inferences of fact.[49]
[48] VAS v Minister for Immigration [2002] FCAFC 350 at [18]-[19] (Gray, Moore and Weinberg JJ); see also Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74 at [27], (Jagot, Bromberg and Rangiah JJ); Shop, Distributive and Allied Employees Association v National Retail Association (No.2)(2012) 205 FCR 227 at [31] (Tracey J)
[49] Minister for Immigration v SGLB(2004) 78 ALJR 992 at [39]-[41] (Gummow and Hayne JJ); National Retail Association (No.2) at [31] (Tracey J); Australian Postal Corporation v D’Rozario(2014) 222 FCR 303 at [118] (Bromberg J)
As has been submitted, the Authority did not need to make an affirmative finding that the applicant would have a relative who would be willing and able to act as guarantor for his bail and would come to collect the applicant so he could be released; these were not matters critical to its decision. In so far as it is implicit in the “triply contingent hypothetical” at [27][50] that the applicant might need a relative to do either or both of these things, the applicant has not demonstrated that the Authority had “no evidence” for any such implicit finding. There was evidence before the Authority that the applicant had a cousin who, via his mother, had sent the applicant documents.[51] This was a sufficient evidentiary basis for any implicit finding.
[50] CB 209
[51] see CB 208 [24]
Furthermore, any implicit finding is not one of jurisdictional fact. In order for jurisdictional error to lie, the fact in support of which there is no evidence must be a jurisdictional fact.[52] Whether or not the finding must be one of jurisdictional fact in order for an applicant to succeed on a “no evidence” ground, the Minister contends that the Authority has not erred.
[52] although noting the divergence in the authorities discussed in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [64]; Buchwaldv Minister for Immigration (2016) 242 FCR 65 at [33]-[34]; SGLB at [39]
Resolution
The issues raised by these two grounds do not need to be resolved in light of the Authority’s alternative findings of fact in relation to both of ss.36(2)(a) and 36(2)(aa) of the Migration Act, neither of which is challenged in these proceedings.
Specifically, in relation to s.36(2)(a), the Authority found that harm occasioned to the applicant because of the application of the Sri Lankan Immigrants and Emigrants Act (Immigrants and Emigrants Act) was pursuant to a law of general application, not discriminatorily applied, and thus did not amount to persecution.[53]
[53] CB 210 [29]
In relation to s.36(2)(aa), the Authority found that any treatment arose from the enforcement of the Sri Lankan legislation and did not involve the requisite intention to inflict pain or suffering or to cause humiliation required in the definitions of significant harm.[54]
[54] CB 211 [36]; SZTAL v Minister for Immigration; SZTGM v Minister for Immigration (2017) 262 CLR 362 at [26]-[29]
Neither finding is affected by jurisdictional error and therefore, even if there was an error of the kind raised by either or both of Grounds 1 or 2, it was not material and therefore not jurisdictional.[55]
[55] Hossain v Minister for Immigration (2018) 264 CLR 123 at [30]-[31] per Kiefel CJ, Gageler and Keane JJ, [72] per Edelman J; Minister for Immigration v SZMTA (2019) 264 CLR 421 at [4], [44]-[46], [49] per Bell, Gageler and Keane JJ
In any event, for the reasons that follow, the Authority did not fall into jurisdictional error as alleged by either of Grounds 1 or 2.
In order for the issue raised by the applicant in these grounds to become material, several hurdles of improbability would need to be cleared:
a)first, the applicant would have to be charged with an offence under the Sri Lankan Immigrants and Emigrants Act, that offence having been committed at the age of 1. Unless the offence is a strict liability offence, not requiring a mental element, that seems unlikely;
b)secondly, the applicant would have to plead not guilty to the offence;
c)thirdly, the magistrate dealing with the case would need to be unwilling to rely on the applicant’s personal surety;
d)fourthly, the magistrate would need to require the personal attendance of a family member to provide a guarantee;
e)fifthly, the applicant’s cousin who has previously assisted the applicant and his family with his asylum claim would have to be unwilling or unable to assist.
In my view, this is an even weaker case than DCP16 and the Authority did not need to speculate about such remote possibilities.
Ground 3 – did the Authority err in its usage of DFAT country information, particularly in its construction of the “real risk” test?
This ground of review refers to the Authority’s finding at [28],[56] which was made in the context of its consideration of the applicant’s illegal departure claim by reference to s.36(2)(a). The Authority there had regard to the applicant’s representative’s submissions concerning the risk of torture to the applicant while subject to investigation. It found that “specifically regarding the situation for returnees suspected of offences under Sri Lanka’s immigration laws, DFAT has assessed that the risk of torture or mistreatment for the majority of returnees is low”. The Authority found that the applicant had no adverse profile and was “not satisfied that the chance of him being mistreated during investigation or while detained is anything beyond remote”.
[56] CB 209
In his initial submissions, the applicant asserted error by construction of the real risk and real chance tests.
In response to the applicant’s detailed submissions regarding the prevalence of torture of people detained in Sri Lanka, the Authority stated:[57]
While I do not dispute the reports regarding the continued use of torture, I note that specifically regarding the situation for returnees DFAT has assessed that the risk of torture or mistreatment for the majority of returnees is low.
[57] CB 209 [28]
The Authority then relied on the DFAT assessment to conclude that, despite the reports of ongoing torture of detainees in Sri Lanka, the applicant did not face a real chance of serious harm.[58]
[58] CB 209 [28]
On the basis of that finding, the Authority also found that the applicant did not face a real risk of significant harm for the purposes of complementary protection,[59] despite the fact that torture is expressly included as a form of significant harm in s.36(2A) of the Migration Act.
[59] CB 211 [38]
The 2018 DFAT Report at [4.12]-[4.19] discusses allegations of torture, acknowledging a large number of allegations and discussing difficulties in verifying the allegations. It concludes at [4.19]:
Because few reports of torture are verified, it is difficult to assess the prevalence of torture but DFAT assesses that, irrespective of religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture.
The assessment of “low risk” must be read with the defined terms at page 4 of the 2018 DFAT Report. High, moderate and low risk are each defined. Low risk is defined to mean: “DFAT is aware of incidents but has insufficient evidence to conclude they form a pattern”.
It is said to be immediately apparent that the definition of “low risk” in the 2018 DFAT Report is not inconsistent with a real chance or real risk of harm as defined in case law.
A real chance of serious harm exists where an applicant has a legitimate or justified fear of persecution upon return to the applicant’s home country.[60] Provided the feared harm is not far-fetched, there will be a real chance of harm even if there is only a 10 per cent chance of it occurring.[61]
[60] Chan v Minister for Immigration (1989) 169 CLR 379 at [12] (Mason CJ)
[61] Chan at [35] (McHugh J)
The test for a real risk in the context of complementary protection applies the same threshold as the test of real chance in the refugee context.[62]
[62] Minister for Immigration v SZQRB (2013) 210 FCR 505 at [242] (Lander and Gordon JJ)
The applicant submits that “low risk” as defined in the 2018 DFAT Report is in fact indicative of a real chance or a real risk of harm, given that it proceeds from a premise that “DFAT is aware of incidents”. That DFAT does not have sufficient evidence to conclude the said incidents form a pattern, particularly in a context where the 2018 DFAT Report has stressed the difficulty of verifying reports, does not detract from the fact that the awareness that incidents of torture in fact occur, supports the conclusion that the applicant’s fear is not far-fetched.
It is perhaps understandable that the Authority would “mistake” “low risk” for meaning less than a real risk, given the similarity of the terminology. However, the applicant contends that having made that mistake, contrary to the definition of the term “low risk” in the 2018 DFAT Report, the Authority assessed the risk of harm to the applicant on an erroneous basis.
The applicant contends that, having misapplied the real chance or real risk tests in that way, the Authority fell into jurisdictional error.[63]
[63] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [41] (Gleeson CJ)
I prefer the Minister’s submissions on Ground 3. The applicant’s submissions proceed on the basis that the evidence referred to by the Authority was the 2018 DFAT Report at [4.19]. It was not. Paragraphs [4.12]-[4.19] of the 2018 DFAT Report are not concerned with the torture of persons held in gaol or on remand because of illegal departure, which is what the Authority was addressing at [28]. The Authority, at [28], was referring to “DFAT, ‘Sri Lanka - Country Information Report’, 24 January 2017”, as cited at [30][64] by the first Authority for the same proposition, and cited by the Authority, relevantly, at [25].[65] The relevant paragraph of the 2017 DFAT Report is [4.22],[66] which is as follows:
Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased.
(emphasis added)
[64] CB 170
[65] CB 208
[66] affidavit of Ms Anicic affirmed 28 May 2020 at Annexure SA-1
Precisely what DFAT equated “low” to be in the context of paragraph [4.19] of the 2018 DFAT Report (“a low risk of mistreatment that can amount to torture”) was not directly relevant to the finding at [28].[67] That finding was not merely that there was a “low” risk, but that the Authority was not satisfied that the chance of the applicant being mistreated during investigation or detention was “anything beyond remote”.
[67] CB 209
There are cases where the characterisation of risk in a DFAT report will be critical to the outcome of a review, and any departure from the DFAT assessment will need to be properly explained.[68] In the present case, however, the Authority did properly explain its reasoning and no error arises.
[68] CEO19 v Minister for Immigration & Anor [2020] FCCA 1472 at [54]
Finally, the only possible context in which the applicant, on the facts as found by the Authority, could have been exposed to any risk of torture, was in relation to the applicant’s illegal departure claim. That claim, as I have already found, was dealt with in two separate and independent ways in relation to both of ss.36(2)(a) and 36(2)(aa) of the Migration Act. Ground 3 only attacks the reasoning to the effect that the treatment the applicant may experience in gaol on remand in relation to his illegal departure was not of sufficient gravity to amount to serious or significant harm. It does not attempt to impugn the alternative reasoning. Therefore, any error was not material.
The country information issue
Counsel for the Minister confirmed in oral argument that, properly read, the Authority’s reasons disclose that it drew upon the 2017 DFAT Report in relation to the risk of torture rather than the 2018 DFAT Report, which did not deal with that issue in the same way. As the argument developed orally, it became clear that there was an issue whether the Authority had fallen into error in using information from the 2017 DFAT Report, rather than that contained in the more recent 2018 DFAT Report.
I provided the applicant with the opportunity to further amend the application to deal with this ground as it was developed in oral argument. I also informed the parties that I had dealt with the issue of DFAT country reports before the Authority and I would provide a case reference for them to provide any further submissions required.[69] As noted above, both parties filed further submissions on this issue on 6 July 2020.
[69] BDI17 v Minister for Immigration & Anor [2018] FCCA 2162
The applicant notes that, in written submissions in response to the applicant’s submission in support of Ground 3 that the Authority had misconstrued the passage of the 2018 DFAT Report on which it relied in relation to torture, and consequently misapplied the “real risk” test. The Minister asserted that the Authority in the relevant passage of its reasons was not applying the 2018 DFAT Report, but was applying the superseded 2017 DFAT Report.[70]
[70] Minister’s written submissions, 4 June 2020, at [37]; referring to [28] of the Authority’s decision record
The premise of the Minister’s submission was that the 2017 and 2018 reports were materially different in their treatment of the risk of torture, such that the Authority could not be said to have misconstrued the country information in the manner contended by the applicant if it was in fact applying the 2017 DFAT Report and not the 2018 DFAT Report.
At the hearing on 18 June 2020, counsel for the applicant foreshadowed that relying on outdated country information in preference to more recent information, without a proper justification for doing so, constituted jurisdictional error. Counsel said that the applicant would amend his grounds of review to include that ground of jurisdictional error if it remained the Minister’s position that the Authority relied in the impugned passage in the 2017 and not the 2018 DFAT Report. Counsel for the Minister reiterated that that was the correct position.
The Authority had before it both the 2017 and 2018 DFAT Reports, having exercised its power under s.473DC of the Migration Act to obtain for itself the 2018 DFAT Report.
The terms of the 2018 DFAT Report itself make clear that it is intended to displace entirely the 2017 DFAT Report. At [1.5], the 2018 DFAT Report states: [71]
This updated Country Information Report replaces the previous DFAT report released on Sri Lanka published on 24 January 2017.
[71] Annexure RSJ-1 to the affidavit of Mr Jahnke affirmed 14 May 2020
In Minister for Immigration v MZYTS, the Full Federal Court held (omitting references): [72]
Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information, in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well founded.
(emphasis added)
[72] (2013) 230 FCR 431 at [73]
Their Honours went on to state that a decision maker may rely on older information, provided that there has been a considered decision to do so for sound reasons in a given case: [73]
They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.
(emphasis added)
[73] MZYTS at [74]
It is an open question whether the exception permitting consideration of older information where it has been properly justified applies to the consideration of an older DFAT country information report in preference to a newer report, given that the parameters of the report itself stress that the newer report replaces the older report. By extension, the older report is intended to be disregarded.
However, the applicant contends that it is not necessary to determine that question in the present case. That is because there was no evidence whatsoever in the decision record of the sort of evaluation exercise that the Full Federal Court in MZYTS considered was necessary before a decision to rely on older information will be within the decision maker’s jurisdiction.
In BMP15 v Minister for Immigration,[74] O’Callaghan J held that a Tribunal’s reliance on a superseded 2013 DFAT report for one part of its decision, when it also had before it the most recent 2015 DFAT report on which it relied for other parts of its decision, constituted jurisdictional error. The fact that the text of the DFAT report expressly stated that it replaced the earlier DFAT report, as well as the fact there was no evidence of a weighing process in the Tribunal’s reasons to justify reliance on the older report, were factors supporting jurisdictional error.[75]
[74] [2018] FCA 1291
[75] BMP15 at [36]-[37]
The ultimate finding in BMP15 was that the Tribunal had breached s.499 of the Migration Act and Ministerial Direction 56, which made it mandatory for a Tribunal to have regard to the 2015 DFAT report.
As I observed in BDI17, Ministerial Direction 56 does not apply to the Authority.[76] However, given that Ministerial Direction 56 was binding on the delegate whose decision the Authority was reviewing, and given the statutory intention that the Authority obtain for itself updated information where necessary, which the Authority did in this case, it is said to have been contrary to the statutory intention to permit the Authority to ignore the most recent information that was before it and instead rely on superseded information.[77]
[76] at [70]
[77] BDI17 at [71]
The applicant submits that the result of doing so was the absurd result highlighted by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend: [78]
It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
(emphasis added)
[78] (1986) 162 CLR 24 at [45]
Even putting Ministerial Direction 56 to one side, it is said to be plain that the Authority has:
a)reached a state of satisfaction by reference to outdated material in preference to more recent material from the same source, with no justification for doing so, contrary to MZYTS;
b)ignored the most recent material that was before it, relying instead on outdated material, contrary to Peko-Wallsend; and
c)ignored the direction in the text of the 2018 DFAT Report itself, which indicated that it replaced the 2017 DFAT Report.
Resolution
I prefer the Minister’s submissions on this ground. In BDI17, the error I relevantly identified at [72] was an unreasonable failure by the Authority to consider exercising its permissive statutory discretion in s.473DC of the Migration Act to get new information.
Here, the Authority did exercise its s.473DC discretion, to get the 2018 DFAT Report. At [8]:[79]
I have also obtained new information from a report of the Department of Foreign Affairs and Trade (DFAT) dated May 2018 which updates an earlier report relied on by the delegate. The information in the new report is DFAT’s most recent assessment of the situation in Sri Lanka, prepared specifically for the purpose of protection status determination and I am satisfied there are exceptional circumstances to justify considering it.
[79] CB 204
There can be no question that the Authority considered the 2018 DFAT Report. It is referred to throughout the reasons. For this reason alone, BDI17 is distinguishable.
Ground 4 of the applicant’s further amended application is logically inconsistent with Ground 3 and it is logically meant to be an alternative argument.
The applicant’s complaint is in part that the 2018 DFAT Report was not expressly referred to at [28][80] of the Authority’s reasons, and that the Authority relied upon the superseded 2017 DFAT Report.
[80] CB 209
At [28], the Authority was considering the applicant’s claim to fear torture in the context of his “illegal departure claim”. The Authority first discussed the applicant’s representative’s submissions. They referred to and relied on country information between the years 2012 to 2018. The Authority then gave consideration to the applicant’s specific claim. It did so by reference to the 2017 DFAT Report, which specifically considered torture of returnees. The 2018 DFAT Report did not give such specific consideration.
The choice and interpretation of country information is a generally factual matter for the Authority.[81] That the Authority preferred some information, or gave greater weight to certain information over other information, does not reveal jurisdictional error. The accuracy of the country information relied on is a matter of fact for the Authority.[82]
[81] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13], Applicant NABD of 2002 v Minister for Immigration (2005) 216 ALR 1 at [8]; NBKT v Minister for Immigration (2006) 156 FCR 419 at [81]-[84]
[82] NAHI at [11]; MZZAT v Minister for Immigration [2013] FCA 791 at [31]-[33]; SZANK v Minister for Immigration [2004] FCA 1478 at [16]; SZDWK v Minister for Immigration [2006] FCA 405 at [15]
The applicant relies on MZYTS. That was a case in which the visa applicant claimed to fear persecution because he was a member and supporter of the Movement for Democratic Change (MDC). He had identified cyclical and increasing risks to actual or perceived MDC members and supporters, during the time period leading up to elections. The visa applicant alleged that the Tribunal had failed to consider post-hearing submissions containing country information regarding the escalating volatility and violence toward MDC supporters in the context of forthcoming elections.
The Full Federal Court held that the Tribunal could not discharge its statutory review task without a consciousness and consideration of the visa applicant’s submissions and evidence most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground.[83] The Tribunal’s reasons suggested that it did not consider the contents, as opposed to the existence, of the applicant’s post-hearing materials. Relevantly, at [46], the Full Federal Court held:
Although in one sense this might be described as a “failure to consider” most recent country information, or a failure to consider a claim about increased risk of persecution on return to Zimbabwe, in our opinion the error is, fundamentally, a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s 36(2)(a)...
[83] MZYTS at [38]
The Full Federal Court found, at [73], that the consideration of the most up-to-date country information available to it was a core part of the Tribunal’s function on merits review. On the question of using the most recent country information, the Full Federal Court in MZYTS held at [73]-[74]:
Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well founded.
That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.
(emphasis added)
It would be an error for the Authority to rely upon a superseded DFAT Report which was contradicted by a more recent Report, or even if the information in the superseded Report is rendered unreliable in a more general way by the more recent Report. Where, as here, however, the most recent Report is silent on the relevant issue, and that silence is not indicative of a change in circumstances, it is in my view open to the Authority to rely upon the superseded Report. The fact that the 2018 DFAT Report was described as replacing the 2017 DFAT Report is not in itself definitive, at least where the 2018 DFAT Report does not raise a question of doubt or uncertainty about information in the 2017 DFAT Report.
Ground 4 has not been established.
Conclusion
The applicant has failed to established that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 July 2020
5
41
2