AZK18 v Minister for Immigration
[2019] FCCA 2503
•27 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZK18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2503 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of protection visas – applicants claiming a fear of harm in Sri Lanka – applicants’ fears found not to be well-founded – whether the Authority failed to properly consider an integer of the applicants’ claims, or failed to engage in an active intellectual process, or made an irrational decision in respect of the child applicants, or erred in determining the receiving country for one of the child applicants or erred in considering the impact of detention considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 FER17 v Minister for Immigration[2019] FCAFC 106 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 |
| First Applicant: | AZK18 |
| Second Applicant: | AZL18 |
| Third Applicant: | AZM18 |
| Fourth Applicant: | AZN18 |
| Fifth Applicant: | AZO18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 550 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 5 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu of Hodges Legal |
| Counsel for the Respondents: | Ms K Hooper |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application as amended on 16 August 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 550 of 2018
| AZK18 |
First Applicant
AZL18
Second Applicant
AZM18
Third Applicant
AZN18
Fourth Applicant
AZO18
Fifth 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 applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 8 February 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the parties.
The five applicants are a husband (first applicant), wife (second applicant), son and two daughters. The first, second, third and fifth applicants were born in Sri Lanka[1] and arrived in Australia on 14 October 2012. The fourth applicant was born in Australia on 2 February 2014.[2]
[1] (Court Book) CB 374 and following
[2] CB 351
The applicants applied for Safe Haven Enterprise Visas (SHEV) on 14 March 2017.[3] The first and second applicants advanced claims to be persons owed protection obligations. Separate claims were not made on behalf of any of the three child applicants and they were included in the same application as members of the first applicant’s family unit.[4]
[3] CB 356 and CB 411
[4] As correctly stated by the Authority at CB 492 [2]
The first applicant claimed that he was a former member of the Liberation Tigers of Tamil Eelam (LTTE) and that his brother had been killed fighting with the Sea Tigers.[5] The first applicant claimed that he had been identified, questioned and assaulted by the authorities due to his own LTTE involvement, and because of his association with his brother. The first applicant’s further claims included claims to fear harm because some of his personal details were inadvertently disclosed in a data breach in 2014, as a Tamil male and a Tamil from the North, and for being a returned asylum-seeker who left Sri Lanka illegally.
[5] The naval wing of the LTTE
The second applicant claimed to fear harm because of the first applicant’s profile, as a female, because of the data breach, as a Tamil woman and a Tamil from the North, and as a returned asylum-seeker who left Sri Lanka illegally.[6]
[6] See the Authority’s summary at CB 492 [3]-[4]
On 31 July 2017, the delegate refused the applicants’ visa applications.[7] The delegate largely accepted the adult applicants’ factual claims.[8] With respect to the first applicant, the delegate accepted that he had provided low level-support to the LTTE and that his brother was a Sea Tiger. The delegate was not satisfied, however, that there was a genuine suspicion on the part of the authorities that the first applicant was an LTTE cadre or leadership figure. The delegate did not accept the submissions of the applicants’ representative that the first applicant was a person who held a particular risk profile, or would be of interest to the Sri Lankan authorities.[9]
[7] CB 411
[8] CB 417
[9] CB 419
The delegate’s decision was referred for review by the Authority. On 8 February 2018 the Authority made its decision, affirming the decision under review.
The Authority accepted a number of aspects of the first applicant’s factual claims. Specifically, the Authority found the first applicant has consistently claimed that he had been a member of the LTTE, although he did not wear a uniform or engage in combat activities, nor was he deployed to the front lines, and he had not claimed to have been issued with an LTTE number or pseudonym.[10] Although the Authority accepted that the first applicant did more than merely interact with the LTTE or have a general association with it, the Authority found that, even if the first applicant were regarded as an LTTE member, he provided only low-level support and was not involved in combat operations or high-profile activities.[11]
[10] CB 495-496 [15]
[11] CB 496 [17]
The Authority accepted the first applicant’s claims concerning his and his family’s period of detention in a camp between 2009 and 2011. It accepted his evidence that he was not questioned, nor did the authorities suspect him of having been involved with the LTTE. Having regard to these matters, the Authority was satisfied that the first applicant was not of any adverse interest to the Sri Lankan authorities at the time of his release in June 2011.[12]
[12] At CB 496 [18]
The Authority accepted the first applicant’s claims concerning his later questioning and assault, in May 2012.[13] It took into account that he was not arrested, detained for more than 24 hours, taken to a police station or detention centre, subjected to any monitoring, or subject to any other scrutiny that suggested he was of any more than low-level interest to the Sri Lankan authorities.[14] The Authority found that the Sri Lankan authorities’ interest in the first applicant was “low-level, investigative/intelligence gathering and not a suspicion that the … applicant had a high-level LTTE profile”.[15] Further, the Authority was satisfied that the Sri Lankan authorities had not displayed any ongoing adverse interest in the first applicant arising from his departure from Sri Lanka whilst on conditional release, other than an incident with his brother-in-law. The Authority was satisfied that the authorities did not have any adverse interest in the first applicant because of the circumstances of his departure.[16]
[13] CB 497 [24]
[14] CB 497 [25]
[15] CB 498 [25]
[16] CB 498 [26]
The Authority had regard to information from the Department of Foreign Affairs and Trade (DFAT) dated 2017, concerning those former LTTE members who were most at risk of monitoring, arrest, detention or prosecution. It repeated that it had found that the first applicant was not involved in a combatant role, and the support he had provided to the LTTE was low-level.[17]
[17] CB 498 [27]
Having regard to the totality of its findings, the Authority was satisfied that when the first applicant left Sri Lanka “he was of no, or only a very low-level, interest to the Sri Lankan authorities”. In light of this, and in the absence of evidence demonstrating any ongoing interest in the first applicant, the Authority did not accept that the Sri Lankan authorities’ suspicion of the first applicant would be confirmed because he had fled Sri Lanka. The Authority also took into account that the first applicant had not claimed that he, or any member of his family in Australia, had been involved in any activities since leaving Sri Lanka that may lead to the authorities having an adverse interest in him or his family.[18] The Authority was satisfied that the first applicant was not of any adverse interest to the authorities because of his association with his brother or his cousin.[19]
[18] CB 498 [28]
[19] CB 498 [29]-[30]
The Authority found that because of recent political and social changes in Sri Lanka the applicants will not face a real chance of harm on the basis of their ethnicity or origin.[20]
[20] CB 502 [44]-[45]
The Authority found that because the first applicant was not of adverse interest to the Sri Lankan authorities, it was not likely that he would be killed, injured and taken into custody. Therefore, the second applicant faces no real chance of harm on the basis of gender, as she will not be a woman without male protection.[21]
[21] CB 502 [46]
The Authority found that the data breach would not have raised the applicants’ profile with the Sri Lankan authorities as the first applicant does not now have an adverse profile with the authorities.[22]
[22] CB 504 [54]
The current proceedings
These proceedings began with a show cause application filed on 2 March 2018. The applicants now rely upon an amended application filed on 16 August 2019. That amended application abandons the first ground in the original application. The remaining five grounds are:
2. The Authority committed jurisdictional error by failing to properly consider an integer or component of the applicant’s claim.
PARTICULARS
a.At paragraph 9, the applicant states that, following his conditional release, he went to his parent's house "to hide".
b.In paragraph 25 of its decision, the Authority reasoned that the authorities did not "make enquiries of any other family or friends (including his parents, with whom he was staying)".
c.When making the finding above, the Authority seems to suggest that the authorities should have questioned the applicant's parents on the basis that he was living with them.
d.The Authority does not seem to consider that the authorities were not aware that the applicant was residing with his parents despite the applicant's claim that he was 'hiding' in his parent's house.
3. The Authority committed jurisdictional error by failing to engage in an active intellectual process when considering the applicant’s claims.
PARTICULARS
a. At paragraph 9, the Authority outlined the primary applicant’s claims which included the following:
i. The primary applicant worked for the LTTE on a part-time basis and he was trained to use boats and rifles even though he was not involved in combat.
ii. From December 2008 to March 2009, the primary applicant helped the LTTE by transporting stores, equipment, weapons and medicine from ships to the LTTE camps. During this period he also dug bunkers, assisted injured people and performed labouring duties for the LTTE.
b.Although the Authority found, at paragraph 17, that the primary applicant had more than a general association with the LTTE, it was only satisfied that [he] provided low-level support and was not involved in combat operations or other high profile activities.
c.When making the finding above the Authority failed to consider the potential harm the primary applicant may face as someone who fits squarely within on the six risk profiles outlined by the UNHCR in its 2012 report. Specifically, that the applicant fits within the profile of:
4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE.
d. The UNHCR Risk Profiles are outlined in the DFAT Country Information Report on Sri Lanka which was considered by the Authority.
4. The Authority’s finding that the (child) applicants being detained for several days would not constitute serious harm lacks an evidence and intelligible justification.
PARTICULARS
a.The Authority considered country information at [CB 505, 62] which states that there is a possibility that the primary and secondary applicants "may be detained for several days ... " ... ''in a nearby prison".[23]
[23] CB 507 [71]
b.The Authority was mindful that the question of loss of liberty amounts to serious harm is a qualitative judgement involving the assessment of matters of fact and degree which involves "an evaluation of the nature and gravity of that loss of liberty".[24]
[24] CB 505 [62]
c.The Authority was not satisfied that the applicants "had any vulnerabilities".[25]
[25] CB 506 [62]
d.The secondary applicants consists of three children, the youngest aged four years[26] at the time the Authority made its decision.
[26] CB 406
e.When assessing whether loss of liberty amounts to serious harm the Authority failed to properly consider if the loss of liberty to the child applicants may have more serious consequences for the child applicants than their parents
5. The Authority fell into jurisdictional error when it made findings that Sri Lanka is the receiving country for all the “other applicants” for the purpose of the review it undertook.
PARTICULARS
a. At [CB 495, 13] the Authority states
"The primary and second applicants claim to be Tamil Christians from the Northern Province of Sri Lanka and the other applicants are their children. The applicants have provided documentary evidence of identity, relationship and former residence. On the basis of this evidence I accept that the primary and second applicants are Tamils from the Northern Province and that the other applicants are their children and that Sri Lanka is the receiving country for the purposes of this review”
b. Two of the “other applicants” (children) were born outside of Sri Lanka.
c. The Authority fell into legal error when it accepted that Sri Lanka is the receiving country for two of the other applicants born outside of Sri Lanka.
d. Implicit in the finding at [CB 495, 13] is that the other applicants born outside of Sri Lanka are Sri Lankan Nationals, a test undertaken for the purpose of determining the country of reference.
e. The wrong statutory test was applied by the Authority in concluding that the other applicants born outside of Sri Lanka were nationals of Sri Lanka
f. Applying the wrong test amounts in itself without more amounts to jurisdictional error.
6. The Authority erred in failing to undertake a qualitative assessment of the impact detention would have on the Applicant due to his low profile LTTE membership.
PARTICULARS
a. The Authority accepted at paragraph 28 of its decision that when the primary applicant departed Sri Lanka “he was of no, or only a very low-level, interest to the Sri Lankan authorities”
b. The DFAT Country Information Report on Sri Lanka, dated 24 January 2017, states at paragraph 3.42,
DFAT assesses that, although the great majority of these low-profile ('low-risk') former members have already been released following their rehabilitation, any other lowprofile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation centres, low-profile former LTTE members may be monitored but generally are not prosecuted.
c. At paragraph 27 of its decision the Authority held that the primary applicant would not be processed through a rehabilitation centre because he “was not involved in a combatant role and the support that he did provide was low-level”.
d. At paragraph 28 of its decision the Authority states “Given the low level of interest”.
e. The emphasised section of paragraph 3.42 of the DFAT Report indicates that low profile LTTE who came to the attention of the Sri Lankan authorities “would be detained”.
f. The Sri Lankan authorities knew the applicant to have a low profile and had a low level interest in him when he departed Sri Lanka, which the Authority accepted.
g. The Authority failed to consider that the applicant would be detained due to him being a low profile LTTE member.
h. As the applicant would be detained, the Authority was obliged to assess if the loss of liberty the applicant would experience amounts to serious harm.
In addition to the court book (in two volumes) filed on 13 April 2018, I have before me as evidence the affidavit of the applicants’ solicitor, Mr Tambimuttu, made on 19 August 2019, to which is annexed the DFAT Country Information Report on Sri Lanka published on 24 January 2017.
Consideration
Ground 2 – did the Authority overlook an integer of the first applicant’s claim?
In NACP v Minister for Immigration,[27] Hill J held the following at [40]:
It follows, I think, as a matter of principle, that whatever may be the case with an inferior court subject to certiorari, and whatever may be the case where the error relied upon is an error of law, where an administrative tribunal fails to exercise its jurisdiction by failing to consider the case advanced by an applicant before it the tribunal will have made a jurisdictional error, such that its decision will be a nullity ... Such a failure will exist in a case where a tribunal simply does not consider at all a case which an applicant to it wishes to advance.
[27] [2003] FCA 499
It has been well established that the reviewing Authority is required to consider claims that are expressly made to it or those that clearly arise from material before it.[28]
[28] NABE v Minister for Immigration (No.2) (2004) 144 FCR 1
In Minister for Immigration v SZIAI,[29] the majority of the High Court stated at [25]:
The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
[29] [2009] HCA 39
The Authority has the same duty as the Tribunal to review the decision of the delegate of the Minister.
The Authority's duty to review involves making a finding on any “substantial, clearly articulated argument relying upon established facts”.[30]
[30] Dranichnikov v Minister for Immigration [2003] HCA 26 at [24] (Gummow and Callinan JJ)
It follows that a failure of the Authority to consider a claim that is advanced before it is capable of giving rise to jurisdictional error.[31]
[31] Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57; Minister for Immigration v Anthonypillai [2001] FCA 274
The proper consideration of the applicant's claims involves the consideration of all components and integers of those claims.[32]
[32] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; Htun v Minister for Immigration [2001] FCA 1802
The first applicant has consistently claimed that he managed to avoid the Criminal Investigation Department (CID) because he hid in his parents’ home (situated in Trincomalee). Implicit in this is the claim that the CID did not know where the first applicant's parents resided or would not have thought to search for the first applicant at his parents’ home. The first applicant submits that neither he nor any reasonable person would not hide in a location where he can be easily found.
The applicants submit moreover, that the Authority’s reasoning at [25], that the CID did not make enquiries of the first applicant’s parents, with whom he was staying, presupposes that the CID knew where the first applicant was staying.
I prefer the Minister’s submissions on this ground.
The essence of the applicants’ complaint in this ground of review is that the Authority in its finding at [25][33] overlooked the first applicant’s[34] and/or the second applicant’s evidence[35] in support of their (invalid) protection visa applications, that the first applicant was in hiding at his parents’ home after having been released from detention.
[33] CB 497-498
[34] CB 89 [17]
[35] CB 92 [23]
Where a decision-maker fails to make a finding on a substantial, clearly articulated argument relying upon established facts, such failure can amount to a constructive failure to exercise jurisdiction by way of a failure to consider an integer of the applicant’s claims.[36] An integer of an applicant’s claims is a factual matter that if accepted, may form the basis of a finding that the applicant is owed protection obligations, that is, a finding that the applicant has a well-founded fear of future persecution, or faces a real risk of significant harm.[37]
[36] NABE at [55]-[63]; Dranichnikov at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]
[37] See Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [46]
The Authority accurately summarised the applicants’ claims, and it considered them. It identified the evidence concerning the first applicant being in hiding at [9]:[38]
The second applicant and her brother took the primary applicant to hospital and then from there he went to his parents’ home in Trincomalee to hide. He was there for about 15 days.
[38] CB 494
Given this express identification of the evidence in issue, the applicants cannot discharge their onus[39] of demonstrating that this evidence was positively overlooked. Further, even if the Authority did overlook this evidence, it was not cogent evidentiary material of significance to the assessment of the first applicant’s claims such that any failure to consider it amounts to jurisdictional error.[40]
[39] Minister for Immigration vSZGUR (2011) 241 CLR 594 at 616 [67]-[68] per Gummow J, 623 [91] per Heydon J, [92] per Crennan J
[40] Cf Minister for Immigration v SZRKT (2013) 212 FCR 99 at [112]; Minister for Immigration v SZSRS(2014) 309 ALR 67 at [56]
Contrary to the applicants’ submissions, the Authority’s finding at [25] does not imply that the Sri Lankan authorities knew the first applicant was located at his parents’ house (thus overlooking the evidence that the first applicant was in hiding at his parents’ house). The Authority at [25] in fact found that the Sri Lankan authorities had not made enquiries of “any other family or friends” including the first applicant’s parents. That is, the Authority was not assuming any knowledge on the part of the authorities that the first applicant was located at his parents’ home. Hence, the Authority identified other possible locations that the authorities might have searched for the first applicant, if they were interested in him. The Authority’s reference to the first applicant’s parents, in the text in brackets at [25], merely reflects that it was aware that the first applicant claimed this was in fact where he was located.[41] Put another way, the Authority’s reasons do not presuppose, in ignorance of the evidence concerning the first applicant being in hiding, that the authorities knew to look for the first applicant at his parents’ house. No jurisdictional error is demonstrated by Ground 2.
Ground 3 – did the Authority fail to engage in an active intellectual process when considering the first applicant’s claims?
[41] See also CB 497 [21], final sentence
The applicants contend that the Authority failed to engage with the information before it, in particular the DFAT Country Report at [3.42] which states:
DFAT assesses that, although the great majority of these low-profile (‘low-risk’) former members have already been released following their rehabilitation, and other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation centres, low-profile former LTTE members may be monitored but generally are not prosecuted.
The first applicant maintains that he is a low profile LTTE member who has not been rehabilitated and who successfully concealed his LTTE involvement. It follows, in the applicants’ submissions, that if the first applicant comes to the attention of the Sri Lankan authorities, he would be detained and may be sent to a rehabilitation centre.
The essence of the applicants’ complaint is that the Authority failed to consider the risk of the first applicant’s LTTE involvement becoming known.
The Authority accepted at [14][42] that the first applicant was an LTTE member who had had a low level of involvement with the LTTE during the civil war. The Authority also accepted at [24][43] that the first applicant had been questioned and assaulted in 2012 by Sri Lankan authorities.
[42] CB 495
[43] CB 497
Of importance here is the Authority’s reasoning at [25]:[44]
I take into account that although the primary applicant was badly assaulted and then released on the condition/undertaking noted above, he was not arrested, detained for more than 24 hours, taken to a police station or detention centre, subjected to any monitoring or subject to any other interest that suggests he was of any more than low-level interest to the authorities. While I accept that the authorities did visit his shop in the two weeks after his release, he has not claimed that they searched his shop or his house. They did not at this time make enquiries of any other family or friends (including his parents, with whom he was staying). Further, although the authorities questioned and harmed his brother-in-law/guarantor on a later occasion because of the primary applicant's disappearance, there are no claims that the authorities have made any enquiries of any other family members, visited his parents or siblings, or demonstrated any ongoing interest in the primary applicant or his whereabouts. Having regard to all of this it is not plausible, and I do not accept, that the authorities had a suspicion that the primary applicant had been involved in smuggling and hiding weapons and that he knew where weapons caches were located. I find that the authorities' interest in the primary applicant was low-level, investigative/intelligence gathering and not a suspicion that the primary applicant had a high-level LTTE profile.
[44] CB 497-498
That paragraph needs to be read in context in particular with what follows at [26]:[45]
I am also satisfied that the authorities have not displayed any ongoing adverse interest in the primary applicant arising from his departure whilst on conditional release, other than the incident with his brother-in-law. I take into account that he was not on any formal reporting conditions or bail, had not been charged with any offence and apart from being questioned and assaulted, his brother-in-law has not been subject to any further interest or harassment. I find that this indicates that the authorities do not have a current or ongoing adverse interest in the primary applicant because of his departure. I am satisfied that the authorities do not have any adverse interest in the primary applicant because of the circumstances of his departure.
[45] CB 498
In my view, the Authority reasoned that the Sri Lankan authorities had found out all they needed or wanted to know about the first applicant’s involvement with the LTTE and had no further interest in him. It is implicit in that reasoning that the Authority took the view that the first applicant did not fall into the class of persons referred to in the DFAT Country Report who still faced a risk of detention and rehabilitation.
I otherwise agree with the Minister’s submissions concerning this ground.
Whether or not the first applicant fit “squarely within” the profile of a person at risk of harm as identified by the UNHCR in its 2012 Eligibility Guidelines and/or the profiles described by the 2017 DFAT Country Report referred to by the applicants at (h) of the applicants’ submissions was a question of fact for the Authority. The Authority gave express consideration to the likelihood of the applicant facing a real chance of serious harm on the basis of his individual profile. At [27], the Authority found:[46]
DFAT has assessed that in 2017, those former LTTE members most at risk of monitoring, arrest, detention or prosecution are those who are high-profile former members. This includes former leaders, those suspected of having committed serious terrorist or criminal acts, and those who provided weapons or explosives to the LTTE. DFAT also assessed that low-profile former LTTE members who had not been processed in rehabilitation centres may be subject to detention and rehabilitation if they returned to Sri Lanka, but generally this involves persons who were former combatants, administrators or who provided a high level of non-military support to the LTTE during the conflict.[47] I have found above that the primary applicant was not involved in a combatant role and the support that he did provide was low-level.
[46] CB 498
[47] DFAT, “DFAT Country Information Report - Sri Lanka”, 24 January 2017, CISEDB50AD105, at p 17
The Authority, having regard to the totality of the evidence and its findings, was satisfied that at the time the first applicant departed Sri Lanka, he was of no, or only a very low-level, interest to the Sri Lankan authorities. Further, and for the reasons it explained, the Authority was not satisfied that the Sri Lankan authorities would have a future adverse interest in the first applicant or his family.[48] The Authority expressly considered the first applicant’s submissions as to his LTTE profile, and the country information relied upon by the first applicant.[49]
[48] At CB 498 [28]
[49] At CB 499 [32]; see also CB 501 [39]
This ground of review is an invitation to this Court to undertake impermissible merits review. As Basten JA stated in Swift v SAS Trustee Corporation[50] at [45], Allsop P (as his Honour then was) agreeing:
The language of “proper, genuine and realistic consideration” was introduced into administrative law in Khan v Minister for Immigration, Local Government and Ethic Affairs [1987] FCA 457; (1987) 14 ALD 291 and Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 at 483 (Gummow J). That which had to be properly considered was “the merits of the case”. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 at [79]. If it is demonstrated in a particular case that an administrative decision-maker has failed to address a claim properly made, or has failed to identify the statutory power under which the claim should properly be disposed of, there will be a constructive failure to exercise jurisdiction. Relief will be available accordingly. Thus, “to fail to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord [the applicant] natural justice”: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ, Hayne J agreeing) and [86]-[88] Kirby J), applied by this Court in Spanos v Lazaris [2008] NSWCA 74 at [19], in my judgment, Beazley and Bell JJA agreeing. Where a decision-maker does address the claim, by reference to the correct power, asking whether he or she did so “properly” or “genuinely”, or “realistically” may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process.
[50] [2010] NSWCA 182
Further, as Flick J noted in Buadromo v Minister for Immigration[51] at [45], in respect of the term “proper, genuine and realistic consideration”:
But it has also been recognised that “[t]aken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review”: Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], (2010) 6 ASTLR 339 at 351 to 352 per Basten JA (Allsop P agreeing). See also: Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171 at [76], [2007] NSWCA 171; (2007) 153 LGERA 450 at 467 per Basten JA. These words of caution have also themselves been oft-repeated: see, e.g., Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [30], [2010] HCA 48; (2010) 243 CLR 164 at 175 to 176 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Tewao v Minister for Immigration and Citizenship [2011] FCA 1515 at [41] per Katzmann J. Indeed, Perram J has queried whether the phrase adds much to the analysis: Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22]. The formula of “proper, genuine and realistic consideration”, it has also been said, “has the very real danger of creating ‘a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised’”: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [24], [2015] FCAFC 83; (2015) 231 FCR 513 at 520 per Flick, Griffiths and Perry JJ (applying Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [65], [2001] FCA 274; (2001) 106 FCR 426 at 442 per Heerey, Goldberg and Weinberg JJ). However, whether these criticisms be correct matters not; the phrase “remains a useful touchstone to ensure that consideration given to a particular matter is such consideration as is required by law”: Islam v Cash [2015] FCA 815 at [14], [2015] FCA 815; (2015) 148 ALD 132 at 135 to 136 per Flick J.
[51] [2017] FCA 1592
See, similarly, Carrascalao v Minister for Immigration[52] at [32]-[35] and Minister for Home Affairs v Buadromo[53] at [44].
[52] (2017) 252 FCR 352
[53] (2018) 362 ALR 48
Ground 4 – did the Authority err in relation to the possible detention of the child applicants?
Ground 4 alleges that the Authority’s finding that the child applicants being detained for several days would not amount to serious harm “lacks an evident and intelligible justification”.
The Authority did not make any specific findings concerning the detention or non detention of the child applicants on return to Sri Lanka. The Authority found that the parents might be detained briefly for breaching the Immigrants and Emigrants Act[54] and it may have assumed that the children would be permitted to remain with their parents during that period of detention. That is not an issue of detention so much as physical location.
[54] CB 505-506 [62]
The Authority did not make a finding that any of the child applicants would be detained for several days (or at all). Nor was it ever claimed that any of the child applicants would be detained.[55] For completeness, it is noted that:
a)contrary to (d) of Ground 4 of the applicants’ submissions,[56] only one of the child applicants was born in Australia; and
b)at [57][57] and [60][58] the Authority referred to information from DFAT that “children are never subject to bail or fines” and at [61][59] the Authority found the evidence before it did not support a finding that children are penalised for illegal departure from Sri Lanka.[60]
[55] Cf, for example CB 189, where is it apparent that no claims were made on behalf of the children
[56] Page 11
[57] CB 504
[58] CB 505
[59] CB 505
[60] For completeness, see also CB 506 [64]: “I am not satisfied that the child applicants face a real chance of harm for having departed Sri Lanka illegally.”
Ground 5 – did the Authority err in considering the receiving country of the fourth applicant?
There is no substance to this ground.
All applicants claimed to be Sri Lankan nationals.[61] The applicants’ written submissions apparently concede this. The Authority did not err in finding Sri Lanka was the applicants’ receiving country,[62] including in circumstances where the citizenship of none of the applicants was in issue. FER17 v Minister for Immigration[63] is factually distinguishable.[64]
[61] CB 201; 229; 255; 281; 307; see also CB 333 [3]; 338 [2]
[62] CB 495 [13]
[63] [2019] FCAFC 106
[64] See in particular [5]
In the absence of any claim of statelessness or of nationality of some country other than Sri Lanka in respect of the fourth applicant and in circumstances where the fourth applicant was represented to be a Sri Lankan citizen and almost certainly is, this ground must fail.
The Minister also advances an alternative contention.
The Minister contends that any error by the Authority, which must of necessity concern only the fourth applicant and which is not conceded, was not material and therefore not jurisdictional.[65] The only child applicant who was born in Australia (the fourth applicant) claimed to be entitled to the grant of the visa on the basis of ss.36(2)(b) and/or (c) (that is, as a member of the family unit of one or both of the first and second applicants). The fourth applicant’s country of nationality or receiving country (or country of former habitual residence) was irrelevant to the outcome of her application for the visa. Rather, the fourth applicant’s application was bound to be refused, once the applications of the first and second applicants had been refused, as she could not satisfy either of ss.36(2)(b) and/or (c).
[65] Hossain v Minister for Immigration (2018) 359 ALR 1 at [31] and [72]
It is unnecessary to express a concluded view on the Minister’s alternative contention but I include it for completeness.
Ground 6 – did the Authority err in failing to undertake a qualitative assessment of the impact detention would have on the first applicant?
This ground is related to Ground 3. In my view, the issue does not arise in the light of the Authority’s finding (made without error) that the first applicant was of no ongoing interest to the Sri Lankan authorities.
Ground 6 alleges that the Authority erred in failing to undertake a qualitative assessment of the impact detention would have on the first applicant due to his low-profile LTTE membership.
The Authority’s acceptance that the adult applicants would potentially be detained on their return to Sri Lanka was limited to an acceptance that, as persons who had departed Sri Lanka illegally, they may be remanded in custody for a short period.[66]
[66] CB 505 [62]; cf applicants’ submissions at (g)
With respect to the criterion in s.36(2)(a), the Authority correctly identified, at [62],[67] that the question of whether a loss of liberty constitutes serious harm involves a qualitative judgment, involving the assessment of matters of fact and degree.[68] Including having regard to the adult applicants’ circumstances and the brief nature of any questioning and detention, the Authority found that any such questioning and detention would not constitute serious harm.[69] The Authority made a further, and separate and independent finding that any questioning, detention, and/or fine would be pursuant to a law of general application, not discriminatorily applied, and therefore not persecution.[70]
[67] CB 505
[68] CB 505 [62]; Minister for Immigration v WZAPN; WZARV v Minister for Immigration (2015) 254 CLR 610 at [45]
[69] at CB 506 [62]
[70] CB 506 [63]
With respect to the criterion in s.36(2)(aa), the Authority expressly considered whether the questioning, imposition of a fine, and brief period of detention on remand, separately or in combination, would constitute significant harm. It was not satisfied that the conduct in question amounted to severe pain or suffering, pain or suffering that was cruel or inhuman in nature, or to extreme humiliation. Nor was the Authority satisfied that the conduct amounted to, or would result in, arbitrary deprivation of life, the death penalty or torture.[71]
[71] CB 507 [72]
The Authority’s findings are to be read fairly and as a whole,[72] including in the light of its earlier acceptance that the applicant had a low-level historical association with the LTTE. No jurisdictional error is demonstrated by this ground of review.
[72] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 271-272
Conclusion
The applicants have failed to demonstrate that the decision of the Authority is affected by any jurisdictional error. It 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 sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 September 2019
0
26
2