AZG21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1046
Federal Circuit and Family Court of Australia
(DIVISION 2)
AZG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1046
File number(s): BRG 188 of 2021 Judgment of: JUDGE EGAN Date of judgment: 13 December 2022 Catchwords: MIGRATION – Whether Authority acted unreasonably in reaching its findings – whether Authority ought to have sought out new information – whether Authority acted illogically – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss. 473CB, 5H(1), 5J, 473DC(2) and 473CC. Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
Minister for Immigration and Border Protection v MZYTS & Anor (2013) 230 FCR 431.
Minister for Immigration and Border Protection v CRY16 & Anor (2017) 253 FCR 475.
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.
Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.
SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210.
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 9 December 2022 Date of hearing: 9 December 2022 Place: Brisbane Counsel for the Applicant: Mr A Psaltis Solicitor for the Applicant: Allens Counsel for the First Respondent: Ms C De Marco Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
BRG 188 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZG21
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:
13 December 2022
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Application for Extension of Time filed on 7 May 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $6,500.00.
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 Tamil Hindu male citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on or about 1 May 2013. The applicant had travelled from India to Indonesia, and then from Indonesia to Australia by boat.
On 4 August 2017, the applicant applied for a Safe Haven Enterprise Visa (SHEV).
On 24 February 2021, a delegate of the Minister refused to grant the visa on the ground that the applicant did not fall within the relevant definition of a refugee, and that he did not face a real risk of significant harm should he be returned to Sri Lanka. The decision of the delegate was referred to the Immigration Assessment Authority (the Authority) for its review.
On 26 March 2021, the Authority affirmed the decision of the delegate.
At [3] of its reasons, the Authority recorded that it had had regard to the review material provided to it by the Secretary of the Department pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (the Act).
At [5] of its reasons, the Authority recorded the applicant’s claims for protection as follows:
“[5] The applicant’s claims can be summarised as follows:
•He is a young Tamil male of Hindu faith originally from the Eastern Province of Sri Lanka.
•In about 1990 after family members had been harassed, detained and mistreated as Tamils suspected of LTTE involvement, many relatives had disappeared, been injured or killed due to the conflict and his family displaced, he and his family fled Sri Lanka illegally by boat for India and have lived in a Tamil refugee camp in India since. His other sister is in Australia having travelled to Australia about a week prior to him. While in India he completed up to year 10 schooling and then worked casually as a labourer. He has also worked in construction in Australia.
•In India he was treated like a slave, there was a lack of basic services like water and accommodation, and he had no freedom of movement. Despite this his family did not return to Sri Lanka because of the risks on return. It was in these circumstances that he illegally fled India in 2012, ultimately bound for Australia.
•He knows of family and friends who on return to Sri Lanka were harassed, harmed or killed by the Sri Lankan authorities.
•He fears his long absence from Sri Lanka will arouse suspicion from Sri Lankan authorities, particularly given his family’s profile.
•He has no relatives in Sri Lanka to help him if he is arrested or otherwise harmed by the Sri Lankan authorities. He has no connections with the country and does not know the lifestyle and cannot return.
•His information was leaked in a Departmental data breach and he fears the Sri Lankan authorities will know he sought asylum in Australia.
•He is a failed asylum seeker.”
At [16] of its reasons, the Authority set out what relevantly constituted a person as a refugee under the provisions of s. 5H(1) of the Act.
At [17] of its reasons, the Authority set out what relevantly constituted a well-founded fear of persecution under the provisions of s. 5J of the Act.
At [11] – [14] inclusive of its reasons, when considering whether protection obligations were owed to the applicant or not, the Authority found as follows:
“[11]In the visa interview the applicant said his father lost contact with his family in Sri Lanka after moving to India. He also said his father suffered an injury to his leg as a result of assaults by the Sri Lankan authorities and that this still affected the way he walked. Despite this injury his parents were running and carrying him and trying to escape the conditions in Sri Lanka when they left in 1990. In her letter his sister does not state that the family assisted the LTTE and when asked about this in the visa interview the applicant said he was not certain whether his family directly supported the LTTE. He speculated that they may have helped the LTTE indirectly noting there must have been some reason for all the difficulties they suffered.
[12]A Human Rights Watch Report before me2 describes the Sri Lankan civil conflict up until about 1995. It notes the role played by government backed militia and other anti-LTTE militants in the early stages of the conflict but also that human rights abuses were committed on both sides. Attacks against the Tamil populations were often perpetrated solely based on ethnicity, as reprisal attacks and in an effort to push Tamils out of the area. Tamil civilians were treated as military targets and a tool to further military objectives. Tamil civilians were settled in disputed areas to act as buffers in the conflict. In 1987 the government settled Sinhalese communities in traditional Tamils areas like Trincomalee and members of these settled communities, designated as “home guards”, were armed by the government and are reported to have engaged in extrajudicial executions and other human rights abuses at that time. After peace talks broke down violence is reported to have escalated in 1990. As at 1995, some 30,000 had been reportedly killed and one million displaced due to the conflict.
[13]Based on the applicant’s account, details in his sister’s letter and the country information detailed above which indicates thousands of Tamil civilians went missing or were killed and were targeted by various groups solely on the basis of ethnicity at the time and one million were displaced I accept the applicant had a number of relatives who went missing or were killed during the conflict, including his grandfather, and that his father, grandfather and other relatives were also detained for periods and mistreated by authorities of those working with them on suspicion of LTTE links and that his family were displaced. In the visa interview the applicant said he was not sure if his family directly assisted the LTTE during the conflict and in her letter the applicant’s sister did not indicate this was the case. I do not consider his family directly assisted the LTTE. I note, the applicant’s father, grandfather and uncles were eventually released in the instances of detention described, on one occasion after the family had pleaded for their release. I also note the country information above which indicates that at that time Tamil populations were often persecuted solely based on ethnicity. The country information before me also reports that those who had fled Sri Lanka and arrived in India at that time were screened for LTTE links and those suspected were sent to special camps, that have been described by some a prisons. Shortly after arriving in India the applicant’s family including his father were placed in the same camp and have lived there since. There is no suggestion his father or other family were placed in any special camps for those with LTTE links. While the applicant’s uncle is claimed to have been caught by authorities when attempting to flee Sri Lanka illegally for India on a boat along with many other fleeing Tamils, on the evidence I consider it more plausible that this was because he was attempting to flee illegally. While I accept they fled fearing for their safety as Tamils who had been questioned and mistreated by authorities on suspicion of LTTE links and given the general insecurity in Sri Lanka at the time and their displacement, on the evidence I do not accept the applicant’s family were personally of ongoing interest to authorities on suspicion of LTTE links when they fled in 1990.
[14]The applicant has variously claimed to have relatives and friends who have been harassed, harmed or killed by Sri Lankan authorities on their return to Sri Lanka from India and Australia. In his arrival interview the applicant briefly mentioned it was his own relatives who were killed by Sri Lankan authorities on their return to Sri Lanka from India in 2011, but that one of them was not killed and she returned to India and had suffered severe mental health issues ever since. In his visa application he did not mention he had relatives who returned but rather that it was his sister’s friend, who it seems became a close family friend, who returned with her family and that they were killed by Sri Lankan authorities and that it was this friend’s mother who returned to India and has suffered severe mental health issues. A letter from his sister (who was close friends with the women in question) reiterated this account and did not mention relatives experiencing similar events. In the visa interview when the delegate reminded the applicant about these claims, the applicant indicated these events related to a family who were living in their refugee camp in India and when asked if he knew why they were targeted he indicated it related to the confiscation of their land by authorities. He also mentioned other friends from the Indian refugee camp who returned to Sri Lanka only to return to India three months later or flee elsewhere because they had no freedom or peace or were harassed. I note that after the arrival interview the applicant did not mention these events concerned his relatives and the narrative of events provided in his arrival interview sounded very similar to that subsequently given in his visa application, his sister’s letter and his visa interview which only concerned friends or acquaintances. On the evidence I consider the applicant initially confused the story and that the account provided in his visa application, sister’s letter and his visa interview, more accurate. I accept the applicant has friends or knows people who have unsuccessfully tried to return to Sri Lanka and that some were killed by Sri Lanka authorities on return some two or more decades ago in relation to land issues and that others have either returned to India or relocated elsewhere. I do not accept any of these events concerned the applicant’s relatives. Based on the evidence the applicant is not linked to these friends or acquaintances or their targeting in any meaningful way and I do not consider these events indicate the applicant is at risk of harm in connection with these unrelated and/or historical events.”
On 7 May 2021, the applicant filed an Originating Application for Review of the decision of the Authority. That Originating Application was filed out of time. At the hearing before the Court, it was conceded by Counsel for the applicant that the Court’s determination on the substantive merits of the grounds of review would determine whether the application for extension of time for the bringing of the application would be successful or not. The applicant relied upon a Further Amended Application which had been prepared by his lawyers, the grounds of which were as follows:
“1. The decision of the Immigration Assessment Authority is a nullity because the Authority unreasonably failed to consider relevant evidence, namely evidence contained in the document “Report of the Office of the High Commissioner for Human Rights” dated 27 January 2021 (the “OHCHR 2021 Report”).
Particulars
A. The Authority acted unreasonably because, when making its decision, it had notice of the OHCHR 2021 Report, notice that it may contain relevant evidence, and power under sections 473DC and 473DD Migration Act 1958 to get the OHCHR 2021 Report and to consider the information contained therein, as follows.
B. The Authority’s decision is dated 26 March 2021.
C. The Authority relied on the document “Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka”, 18 February 2021, referred to in paragraph 21 of the IAA Reasons at footnote 8 (the “OHCHR 2020 Report”) as relevant to the requestion of whether the applicant has a well-founded fear of persecution.
D. The OHCHR 2020 Report identifies that it is an update made pursuant to Resolution 40/1 of the Human Rights Council dated 13 March 2019 (“Resolution 40/1”).
E.Resolution 40/1 was titled “Promoting reconciliation, accountability and human rights in Sri Lanka and, inter alia, requested the Office of the High Commissioner to present a written update on to the Human Rights Council at its 43rd session, and a comprehensive report at its 46th session.
F.The OHCHR 2020 Report was the written update to the 43rd session and the OHCHR 2021 Report was the comprehensive report to the 46th session, pursuant to Resolution 40/1.
G.The OHCHR 2021 Report was relevant to the question of whether the applicant has a well-founded fear of persecution.
2. The Immigration Assessment Authority’s decision that the applicant and his family were not suspected of being LTTE affiliates was based on findings and inferences which were not supported by logical grounds and thus is affected by jurisdictional error.”
It was submitted on behalf of the applicant that the Authority had failed to consider the most current material available to the Authority concerning the matters in issue before it. Reliance was placed upon the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45 where His Honour said:
“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. This conclusion is all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to new hazard or new jeopardy.”
Further reliance was placed by the applicant’s Counsel upon the decision of the Full Court in Minister for Immigration and Border Protection v MZYTS & Anor (2013) 230 FCR 431 where, at [31] – [36] inclusive and at [72] – [73], it was held by Kenny, Griffiths and Mortimer JJ as follows:
“[31]Before both the Federal Magistrates Court and this court the asserted error in the Tribunal’s decision was often described as a “failure to consider more recent information”. That description might suggest as a corollary some kind of freestanding legal obligation on the Tribunal to consider the most recent information. In our opinion, while those descriptions may explain the path leading to error, the error itself is a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Migration Act.
[32]The Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the Tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.
[33]The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571–573.
[34]Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
[35]The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there. It is appropriate to recall how the task was described by Gummow and Hayne JJ in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (S395) at [73]–[76]:
[73]The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.
[74]Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
[75]Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
[76]Because reasoning of the kinds just described is often employed, it is perhaps inevitable that those, like the Tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases. There are dangers in creating and applying a scheme for classifying claims to protection. Those dangers are greatest if the classes are few and rigidly defined. But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.
[36]In that sense, to say there has been a “failure to consider recent information” or a “failure to consider a claim” may be no more than descriptions or explanations of the manner in which the Tribunal’s task has miscarried, but it is the miscarriage of the task which constitutes the jurisdictional error.
…
[72]As we observed at the outset of these reasons, to say the flaw in the Tribunal’s decision is “failing to consider most recent information” is an inapt description. In this context something must be said of using the language of “considering” a matter or issue. The statutory task here in issue differs from the one in Tickner v Chapman (1995) 57 FCR 451 (Tickner), where the verb “consider” appeared in the statutory obligation itself. In that circumstance, some construction must be given to what Parliament meant when it used that verb in describing a ministerial function, and that is what the Full Court did in Tickner. Here, the statutory task is described at a broader level and the question whether the state of satisfaction about whether a person is owed protection obligations under Art 1 was lawfully formed will not necessarily be answered by expansive definitions of what the word “consider” means.
[73]Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend 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.”
The applicant’s submission was made in circumstances where, at the time of its review of the decision of the delegate, it had before it a report of the Human Rights Council dated 18 February 2020, but not a later report of the Human Rights Council dated 27 January 2021. Counsel for the applicant relied upon paragraphs 1 - 4 of such earlier report in support of the submission that a reading of such paragraphs by the Authority ought to have:
(a)Alerted it to the fact that a more comprehensive report as to the implementation of an earlier resolution 30/1 of the Council going to reconciliation, accountability and human rights in Sri Lanka would be prepared;
(b)Appreciated that such updated report (namely the report dated 27 January 2021) would be prepared in circumstances where it was considered that Sri Lanka was “at an important juncture following the election on 16 November 2019” of a new President where it was said that the electors were “highly polarised along ethnic lines”.
(c)Appreciated that such comprehensive report was likely to be handed down in early 2021.
The Court does not accept that submission. The decision of the Authority was made in the context of it being required to make a decision as part of a fast track review process. The Authority had vested in it a discretion as to whether it might get new information which was not before the Minister when the Minister made the decision and which the Authority considered relevant, [1] but s. 473DC(2) specifically provided that the Authority did not have a duty to get, request or accept any new information. At the time of its decision on 26 March 2021, the Authority had before it substantial country information which included a 4 November 2019 DFAT Report, a UK Home Office Report of 20 January 2020 and other reports which gave commentary upon the security situation for Tamils in Sri Lanka. It has long been held that the weight given to any particular country information contained in a report was a matter for the Authority itself. [2] This Court infers that the Authority had considered and weighed up the contents of the reports before it prior to coming to the conclusion that it did.
[1] Section 473DC of the Act.
[2] Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]
It is of note that in the 18 February 2020 Human Rights Council Report, [3] serious concerns were expressed about the erosion of civil rights and the increased suppression of people in Sri Lanka. By way of example, paragraphs [25] – [35] of such report were as follows:
[3] Annexure CEM – 1 of the Affidavit of Carin Morcom filed on 19 August 2021
“[25]Of fundamental importance is the 19th Constitutional Amendment of April 2015 which strengthened the independence of key institutions and provided check and balances on the executive. The Government has signalled its intention to repeal or revise this important constitutional guarantee if it achieves the required parliamentary majority. The President has also indicated his opposition to any further devolution of power to provinces as foreseen in the 13th Constitutional Amendment.
[26]The High Commissioner regrets that the Government declined to include the national anthem in Tamil language during the official Independence Day celebrations on 4 February 2020, despite the preceding years’ practice of singing it in two languages as a significant gesture towards reconciliation.
[27]In the wake of the attacks of April 2019, the Government did not finalize or proceed with the Counter-Terrorism Bill which had been drafted to replace the Prevention of Terrorism Act (PTA). On 4 January 2020, it announced that it would be withdrawn. PTA has continued to be used and was a basis to arrest individuals believed to be linked to the organizations responsible for the attacks. As of January 2020, more than 200 individuals were in detention and under judicial custody under PTA, including in relation to the attacks of April 2019.
[28]Following the April attacks, the former President declared a state of emergency that was extended three times until 22 August 2019. Emergency powers were granted to the armed forces to search and arrest, which curtailed freedoms of movement and peaceful assembly and some fair trial guarantees. Extraordinary deployment of the Armed Forces in law enforcement operations continued after the lapse of the state of emergency and was still in effect at the time of drafting.
[29]Some emergency regulations adopted following the terrorist attacks were perceived as targeting specific ethno-religious communities. In particular, the prohibition for security reasons of full-face covering - including full-face motorbike helmets but also some traditional Muslim female dresses like burqa or niqab. This measure led to a rise in intolerance towards those observing religious dress codes, especially Muslim women in public institutions such as hospitals, schools and public transports.
[30]The terrorist attacks were followed by a backlash against religious minorities, particularly the Muslim community, with serious incidents reported from several places. In Negombo (a Catholic majority town and target of one of the bomb explosions), refugees and asylum seekers from Pakistan and Afghanistan (including Ahmadi, Christians and Shia Muslims, among others) were forced to leave their residences due to pressure from landlords, neighbours and mobs, and took shelter in the police station and religious centres until they were relocated. In May 2019, organized mobs conducted- attacks against mosques and Muslim-owned shops in several locations in the districts of Puttalam and Kurunegala, causing widespread destruction of property and killing one person in Kottaramula. These inter-ethnic tensions were fuelled notably by extremist Buddhist religious and nationalist groups who were implicated in deadly anti-Muslim riots at Aluthgama in 2014, in Ampara and Kandy districts in 2018, and dozens of fuel bombs attacks in 2017.
[31]On 27 May 2019, a group of United Nations Special Rapporteurs sent a joint communication to the Government on the violence targeting religious minorities and the precarious living and security conditions of refugees and asylum seekers belonging to religious minorities. In his press release issued at the end of his visit to Sri Lanka in August 2019, the Special Rapporteur on freedom of religion and belief highlighted the long-standing traditions of religious harmony and co-existence in Sri Lanka, expressing concern that tolerance and sustainable peace were at risk from religious and political violence, lack of accountability, distrust of institutions and resentment against perceived majoritarian privilege.
[32]There has been a significant opening of civic space in Sri Lanka since 2015. However, reports of harassment or surveillance of human rights defenders and victims of human rights violations increased during 2019. In particular, starting from October 2019, more than a dozen organizations working on documentation or litigation around accountability and disappearances issues have reported being visited by agents claiming to belong to security agencies and requesting administrative details of the organizations, list of staff, funding sources and external travel. Some relatives of victims of disappearances who took part in organized protests in 2019 were asked to report to police stations for further questioning. Such visits, which began before the presidential election and have since continued, have been documented in different parts of the country, generating considerable fear and anxiety. Several journalists were summoned by the Criminal Investigation Department, arrested and detained or had their offices searched; others have received threats. In some cases, Sri Lankans who travelled to Geneva to attend sessions of the Human Rights Council were questioned about the motives of their trips, either at the airport or during visits by the police at their homes upon their return.
[33]Resolution 30/1 encourages the Government to introduce effective security sector reforms. The return of land occupied by the military in the Northern and Eastern provinces continued in 2019, with the majority of land now returned. Yet, there has been a disturbing trend towards the militarization of civilian government functions. Control of several key civilian departments has been recently put under the oversight of the ministry of defence, including the police, the immigration department, telecommunications registration, the national media centre and the secretariat for non-governmental organizations.
[34]Very little action has been taken to remove individuals responsible for past violations, to dismantle structures and practices that have facilitated torture, enforced disappearances and extrajudicial killings, and to prevent their recurrence. The High Commissioner is deeply concerned about the appointment of several military officers to senior command positions, both before and after the presidential elections, despite the serious allegations that troops under their command committed gross violations of international human rights and humanitarian law during the war, as documented by the United Nations Secretary-General’s Panel of Experts on Accountability in Sri Lanka and the OHCHR Investigation on Sri Lanka.
[35]The High Commissioner is also concerned by the steps taken in 2019 to resume implementation of the death penalty after over 40 years of de facto moratorium, notably the recruitment of executioners and the reported signature of executions warrants for four prisoners convicted of drug-related offences. The High Commissioner recalls that the United Nations opposes the use of capital punishment in all circumstances and urges the Government to continue to uphold the long-standing moratorium on the death penalty and to work towards abolishing the punishment altogether.”
Paragraphs [39] – [41] of the conclusion to the 18 February 2020 report were as follows:
“[39]The space for civil society and critical and independent media, which had widened in recent years, must also be protected. The High Commissioner urges the authorities to immediately end the intimidating visits by State agents and all forms of surveillance and harassment of and reprisals against human rights defenders, social actors and victims of human rights violations and their families. The High Commissioner is also concerned by hate speech and aggressive campaigns by some militant nationalist and religious groups against ethnic, religious and other minorities, particularly Muslims, and urges the Government to take measures to actively prevent such extremism, to investigate and hold those involved in communal violence accountable, and to take measures to prevent similar incidents, notably by curbing hate speech.
[40]The High Commissioner is concerned that the failure to ensure accountability for past violations and to undertake comprehensive security sector reform to dismantle the structures that facilitated them, means that the people of Sri Lanka, from all communities, have no guarantee that violations will not recur. Such failure alienates victims and their communities, instilling distrust in the State, and can potentially fuel further cycles of violence. The High Commissioner urges the Government to promptly investigate and prosecute all allegations of torture and other gross human rights violations, and to give the highest priority to ensuring accountability for long-standing emblematic cases.
[41]The High Commissioner encourages the Government to urgently proceed with the review and repeal of the Prevention of Terrorism Act and to engage with the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism and the United Nations, as well as with the Human Rights Commission of Sri Lanka, in finalizing a new legislation that is compliant with international human rights norms and standards.”
Having considered the country information before it, at [21] – [22] of its reasons, the Authority said as follows:
“[21]Following the 2019 Easter bombing terrorist attacks in Sri Lanka DFAT notes there was an increase in security and military presence in Sri Lanka. While the Islamic extremists who claimed responsibility were killed or captured and the increased security posture has since eased, the Muslim community continue to suffer discrimination and vilification following these attacks. DFAT and the United Nations High Commissioner for Human Rights (OHCHR report)8 also note that the Prevention of Terrorism Act (historically used disproportionately against Tamils), which the former administration had committed to repeal has not been repealed and was more recently used to arrest suspects in the 2019 terrorist bombings. The UK Home Office’s May 2020 report and the OHCHR report note Gotabaya Rajapaksa was elected as president in late 2019 and appointed his brother, Mahinda Rajapaksa, as prime minister the following year. The UK Home Office’s May 2020 report notes Gotabaya Rajapaksa, a Sinhalese Buddhist, has claimed that past allegations of war crimes against him were baseless. The OHCHR report notes that since Rajapaksa’s return to power there have been a number of signs to indicate a possible reversal of past commitments made and it has urged the new administration to continue the work that was started under the former administration to promote reconciliation, accountability and human rights. It notes an increased militarisation of civilian government functions and military presence, the resumption of the death penalty (which appears geared toward Rajapaksa’s fight against drug related crime), an expediated approach to the issue of missing persons which does not involve a more thorough investigation, a continuing lack of progress on a number of fronts (for example in developing the Truth and Reconciliation Commission and the investigation and prosecution of past human rights abuses), government inference and the frustration of progress in relation to high profile cases of abuse, expansion of the executive’s power under the Constitution, the appointment of military officers accused of past human rights abuses to positions of seniority and, it also notes, that in contrast to previous years, in 2020 the government declined to have the national anthem sung in Tamil at Independence Day celebrations. The UK Home Office’s May 2020 report has also noted that among Rajapaksa’s 54 ministers only two are Tamil. A report by the Human Right Documentation Centre also noted of recent incidents in Sri Lanka including those stemming from COVID19 and measures taken to combat the virus such as curfews. It notes of several incidents of assaults on civilians by military and police in the North and Eastern Provinces and Kalutara district in 2020 and a significant increase in incidents reportedly mostly affecting state officials and politicians and their party members.
[22]DFAT notes that the surveillance of Tamils, particularly those associated with politically sensitive issues in the north and east, continues. It describes this monitoring as ‘subtle’, not commonly violent and usually undertaken by plain clothed officers who do not identify themselves and that it sometimes involves the photographing of protests and gatherings. The OHCHR report notes of increased reports of harassment and surveillance of human rights defenders, those protesting in relation to sensitive matters such as missing persons as well as journalists. The UK Home Office’s January 2020 report notes increased monitoring and intimidation following the Easter bombings, particularly of civil society actors and that Tamils who were political activists, journalists or those returning from abroad may be monitored but that this was not the case for all Tamils. Nonetheless it also noted that while Tamils suffered discrimination (like other minorities) Tamils were not specifically targeted and did not suffer persecution just for being a Tamil. This was echoed in the UK Home Office’s May 2020 report. Similarly, DFAT assess that while there are incidents, the evidence is insufficient to conclude there is a pattern of official and societal discrimination against Tamils on the basis of their ethnicity.”
It cannot be said that the Authority was blind to abuses committed against Tamils by Sri Lankan government authorities. At [23] of its reasons, it was noted that in both the DFAT and UK Home Office reports the government was recorded as maintaining “sophisticated intelligence on former LTTE members and supporters including a ‘stop’ list (comprising those with existent Court orders and arrest warrants) who would be detained and handed over to relevant authorities if caught, and a ‘watch’ list for those of interest who were suspected of separatist or criminal activities, minor offenders and former LTTE cadres who were likely to be questioned and monitored if they had returned to Sri Lanka. Of persuasive importance to the Authority was the length of time which had elapsed between when the applicant left Sri Lanka as a young child, and the date of the Authority’s decision. At [24] of its reasons, the Authority said as follows:
“[24]The applicant and his family fled Sri Lanka in 1990 following their experiences during the conflict. I do not consider they directly supported the LTTE or that they were of ongoing interest on suspicion of LTTE links when they left. There is nothing to suggest the applicant or his family subsequently became of interest in connection with an adverse security profile while in India. I also note it has been more than 30 years since the applicant and his family were last in Sri Lanka. The applicant left when he was only a couple of years of age. When asked about any activities related to Tamils in Australia the applicant said he had attended Tamil festivals but not demonstrations and did not otherwise elaborate. The applicant has not claimed any involvement in Tamil separatism, demonstrations, or criminal activities. He does not have an extant court order or outstanding arrest warrant. I am not satisfied he has an adverse profile of interest to Sri Lankan authorities. Based on the country information detailed above and the applicant’s profile I am not satisfied he faces a real chance of harm on account of his Tamil ethnicity or his and his family’s previous experiences in Sri Lanka.”
The Court finds that a reading of the 18 February 2020 Human Rights Council Report would not have alerted the Authority to the existence or recent release of the 27 January 2021 report. [4] The 18 February 2020 report did not specifically state when any updated report would be published, nor could the Authority have reasonably deduced with any certainty that such updated report would be published in January 2021 merely by having regard to the dates of publication of earlier Human Rights Council Reports. The Authority was entitled to weigh up the chance of the applicant suffering harm if returned to Sri Lanka based upon only those reports before it. It did not have a duty to independently seek out further country information not known by it to exist.
[4] Annexure CEM – 5 to the affidavit of Corin Morcom filed on 19 August 2021
The Court further finds that the contents of the 27 January 2021 report could not realistically have resulted in the Authority arriving at a different decision. What was decisive to the Authority was the length of time since the applicant’s departure from Sri Lanka, together with the fact that the applicant had no profile or other characteristic which, as adverted to in the DFAT and UK Home Office Reports, would have given rise to his coming to the attention of the government authorities. The absence of the later report did not prevent the Authority from properly conducting a review. A distinction ought to be drawn between the current situation where the Authority did not know of the existence of the later report, or reasonably suspect that such report was in existence, from a situation where the Authority knew of the existence of new information of relevance, or ought to have appreciated that there was such new information, but refused to consider whether it should get such new information. In Minister for Immigration and Border Protection v CRY16 & Anor (2017) 253 FCR 475 at [82], Robertson, Murphy and Kerr JJ said as follows:
“[82] Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.”
(underlining added)
Further, the test for establishing legal unreasonableness is necessarily stringent. It cannot be said that no other reasonable decision maker could not have arrived at the same decision as the Authority. As was held by Kiefel CJ in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] and [11]:
“[10]In the joint judgment in Minister for Immigration & 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.”
The absence of the later report before the Authority was not material. Ground 1 of the Further Amended Application is without merit.
Ground 2 of the Further Amended Application for Review seeks an impermissible merits review of the decision of the Authority, based upon the Authority’s finding that the applicant did not have the relevant profile to bring him to the attention of the Sri Lankan authorities. The Authority so found at [30] of its reasons where it was said:
“[30]Based on the country information above I accept the applicant will have to undergo processing with other returnees at the airport which may take several hours. The applicant does not have a Sri Lankan passport and as such I consider he will very likely return on a temporary travel document and that the police may undertake further investigative procedures to confirm his identity. However, as he does not have any outstanding court orders or arrest warrants or a criminal or terrorist background or an adverse profile of interest to authorities, I am not satisfied he faces a real chance of being detained in this regard. As he was only a couple of years of age when he fled Sri Lanka illegally by boat, I am not satisfied he faces a real chance of being charged for this illegal departure under the I&E Act. Based on the country information detailed above and the applicant’s profile I am not satisfied he faces a real chance of harm on account of his illegal departure from Sri Lanka and time spent in Australia.”
There was no extreme illogicality in the reasons of the Authority. The Authority was entitled to find that the applicant’s departure from Sri Lanka as a small child some 30 years ago would not give rise to him being detained or persecuted should he be returned to Sri Lanka. As was said by Wigney J in SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210 at [52] – [56] and [61]:
“[52]As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22–23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
[53]The Minister submitted that a decision of the Tribunal can only be overturned on the basis of illogicality or irrationality if it is shown that the end result is one which no logical or rational decision-maker could arrive at. The submission appeared to be that, where a decision is challenged on the basis of illogicality or irrationality, the reviewing court should decide for itself whether the end result was irrational on the materials that were before the decision-maker, as opposed to whether the decision-maker’s reasoning was illogical or irrational. This was said to flow from the judgment of Crennan and Bell JJ in SZMDS.
[54]The Minister’s submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137–138 [151]–[153]; SZWCO v Minister for Immigration and Border Protection[2016] FCA 51 at [61]–[62].
[55]Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137–138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598–599 [83]–[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship[2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]–[67].
[56]An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection[2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455–456 [14]–[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
…
[61]In all the circumstances, it was not at all illogical, irrational, or unreasonable for the Tribunal to have regard to the fact that Mr B said nothing in the biodata interview concerning the Tamil Tigers in assessing the credibility of his claims as they were later developed”.
There is no merit to Ground 2 of the Further Amended Application for Review.
The applicant has failed to establish jurisdictional error on the part of the Authority.
The application for extension of time is accordingly refused.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 13 December 2022
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