AZZ18 v Minister for Home Affairs
[2018] FCCA 3949
•13 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZZ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3949 |
| Catchwords: MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.12.02, 12.03 |
| Cases cited: AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 |
| Applicant: | AZZ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 120 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 13 December 2018 |
| Date of Last Submission: | 13 December 2018 |
| Delivered at: | Perth |
| Delivered on: | 13 December 2018 |
REPRESENTATION
| The applicant in person |
| Counsel for the first respondent: | Ms M. Jackson |
| The second respondent submitting appearance, save as to costs |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The applicant’s application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 120 of 2018
| AZZ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
Introduction
The applicant is a Tamil male of Sri Lankan citizenship.
On 31 May 2013, the applicant arrived at Christmas Island as an unauthorised maritime arrival.
On 31 March 2017, the applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”).
The applicant provided a statutory declaration with his SHEV application. In that application, the applicant set out his claims to fear harm on the basis of his involvement with the Liberation Tigers of Tamil Eelam (the “LTTE”). He explained that he had suffered harm from the Criminal Investigation Division (the “CID”) and the Sri Lankan Army (the “SLA”) during the civil war in Sri Lanka.
The applicant’s SHEV application was refused by a Ministerial Delegate (the “Delegate”) on 5 December 2017. The Delegate was not satisfied that the applicant had a profile that would indicate that he would face a real chance of serious harm or a real risk of significant harm in Sri Lanka.
The matter was then referred to the Immigration Assessment Authority (the “IAA”) on 8 December 2017.
On 30 January 2018, the IAA affirmed the Delegate’s decision.
By application filed in this Court on 1 March 2018, the applicant seeks judicial review of the IAA’s decision.
This proceeding is brought pursuant to s.476(1) of the Migration Act1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the IAA.
The Court had before it a Court Book (“CB”) and written submissions from the Minister dated 22 November 2018. No written submissions that relate specifically to the grounds of review in the applicant’s application were provided to the Court by the applicant prior to the hearing. However, on the day of the hearing, the applicant provided the Court with a two-page letter dated 13 December 2018. In effect, this letter addressed the applicant’s concerns about the current situation in Sri Lanka.
The Court also received an email dated 18 September 2018 from the applicant in relation to his request for Legal Aid assistance. That email indicates that the applicant sought assistance from the Court for a Legal Aid lawyer. The applicant was referred by the Court to a Legal Aid lawyer. That lawyer works for Legal Aid and runs that entity’s self-representation service. The lawyer advised the applicant that she was unable to assist him.
Before this Court the applicant sought an adjournment so that he might get pro bono legal assistance with the assistance of the Court. The Court referenced its powers pursuant to r.12.02 and 12.03 of the Federal Circuit Court Rules 2001 (Cth) and determined that this was not an appropriate case for an adjournment. The Court is satisfied that the applicant has had ample opportunity to seek assistance of the sort requested.
The Court is also satisfied that it was able to assist the applicant in understanding what was occurring and was also able to explain to him what was required in relation to his application before this Court.
The informal request for an adjournment was, accordingly, denied.
The applicant was assisted by an interpreter. The Court thanks the interpreter for her assistance.
The IAA’s Decision
The applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. Further, he is not an “excluded fast track review applicant” as that term is defined in the Act. This is important in relation to allegations of jurisdictional error as the Act limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”, in respect of each fast track reviewable decision referred to the IAA under s.473CA. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the Delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the Delegate’s decision on the basis of the material that was before the Delegate at the time his or her decision was made. The IAA can, however, obtain “new information” – defined as information that was not before the Delegate and that the IAA considers “may be relevant”: s.473DC(1).
An applicant may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are contained in s.473DD of the Act which provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The Court notes that the applicant was provided a copy of the Minister’s submissions and he had been given ample opportunity to review those submissions.
The Court notes the Minister’s written submissions at paragraphs 8 to 16. The Court has crosschecked all references and adopts the summary provided in those paragraphs other than as expanded upon below.
As correctly summarised by the Minister, and not disputed, in relation to this applicant the IAA considered the materials referred to it by the Secretary under s.473CB.
The applicant also provided the IAA with submissions written in Tamil on 8 January 2018 (CB 235-240). He subsequently provided an English translation of those submissions (CB 252-253).
The IAA found that the submission about the applicant's criminal conviction for unlawful sexual intercourse with a person under 17 years of age contained information that was before the Delegate and was not new information. It also found that those parts of the submission concerning events leading up to the applicant's conviction that was not before the Delegate was new information. However, there was no explanation about why the information could not have been provided to the Delegate and the IAA was not satisfied that it was credible personal information which had it been known, may have affected consideration of the applicant's protection claims. The IAA found that the new information also did not relate to the applicant's claim to fear harm and there were no exceptional circumstances to justify considering the new information. This information was, accordingly, not considered.
In this context, the Court specifically notes paragraphs 6 to 8 as follows:
6.At his SHEV interview the applicant gave an account of the circumstances surrounding his conviction in 2016 for Unlawful sexual intercourse with person under 17 years. He also spoke of his desire to be released from immigration and to be reunited with his family. The account in the statement to IAA largely reiterates the account the applicant provided to the delegate and I find that this information was before the Minister and is not new information.
7.However the account in the statement to the IAA provided more detail regarding the events leading up to his conviction, names the two other parties similarly charged, and discussed the reason for his decision to confess to the offence in court. This is new information, as is the applicant's promise not to offend in the future. There is no information before me to explain why this information could not have been made available to the Minister. Nor am I satisfied this is credible personal information which had it been known may have affected the consideration of the applicant's protection claims; the new information does not relate to the applicant's claim to fear harm in Sri Lanka. Furthermore I am not satisfied that any exceptional circumstances exist that justify the IAA considering the new information.
8.A further submission was received from the applicant on 29 January 2018 comprising copies of a letter addressed to the applicant from the department advising that some of his personal information had been leaked through the website in an unauthorized access and a media article in a language other than English.
There is nothing irregular in this approach, and nothing on the evidence that can be seen to constitute an error.
In relation to the news article, the IAA found that the article predated the Delegate's decision and no explanation was provided about why it could not have been made available to the Delegate. The IAA found that the article was not credible personal information which if known may have affected consideration of the applicant's protection claims. In addition, there were no exceptional circumstances to consider the article (at [10]).
The applicant also sent the IAA a copy of a letter he had received about the data breach, which the IAA noted was not new information: [8]-[9].
The IAA then summarised (at [11]) the applicant's claims as follows:
·The applicant is a Tamil from Mannar, Northern Province, Sri Lanka.
·As a child the applicant and his family spent two periods living in India as refugees from the civil war.
·In 2005/2006 the applicant was taken to the LTTE political office and asked why he did not attend LTTE meetings and he was told to attend the next meeting, which he did.
·In 2006 the applicant attended an event in Mannar where the LTTE flag was displayed and the authorities broke up the event. Some people were rounded up and beaten. The applicant left the event.
·After this the applicant, his cousin and some other fishermen were taken by the LTTE to a place of detention where they were held for 14 days. He was beaten and questioned while held and threatened with further harm if he did not help the LTTE in the future.
·He was released by the LTTE and instructed to provide them with kerosene. The applicant and his cousin supplied them with kerosene for some months.
·In 2006/2007 the applicant returned from fishing late one day and was stopped by the army. They removed his shirt, tied his hands and beat him. They examined his identity card and he was released.
·The applicant was concerned for his safety and ceased providing the LTTE with kerosene and he and his family moved to live in an LTTE controlled area. Soon after this the village came under government control and the applicant lived as a displaced person for a period until he returned to live with his mother.
·In 2008 the applicant's cousin was abducted in a white van and has not been seen since. The applicant has provided a copy of an International Committee of the Red Cross tracing notice stating that the cousin has been missing since 29 January 2008. The applicant believes he was taken by the authorities because he supplied kerosene to the LTTE.
·In 2008 the applicant's brother in law was abducted in a white van and killed. The applicant believes he was killed by the authorities because he assisted the LTTE but he does not know what assistance he provided.
·The applicant was fearful for his safety and stayed at the homes of relatives and friends to avoid detection. He did not go out at night or alone.
·The applicant was fishing one day and noticed a group of people in the water who were refugees on a boat travelling from India to Sri Lanka. He provided them assistance. About 10-15 days after this incident some people in a white van came to the applicant's village looking for him. The applicant was scared and went to stay with his uncle and soon after left Sri Lanka, travelling illegally to India in January 2009, From India the applicant travelled to Australia.
·The applicant fears that on return to Sri Lanka he will be imputed with a profile as an LTTE supporter because he is a Tamil and because he provided the LTTE with kerosene and that he will be questioned, tortured and killed, There is an increased risk of harm to him because he fled to India during the war and he would be returning as an asylum seeker. His fear extends to all Sri Lanka and he cannot obtain protection from the authorities. There are army camps near his village and therefore it would be easy for the authorities to locate him.
·The applicant's details were disclosed in 2014 by the Department of Immigration and Border Protection (DIBP) on their website, The people searching for him in Sri Lanka will be able to use this information to locate him and harm him in Sri Lanka.
·The applicant has been convicted of a criminal offence in Australia; he has not advanced any protection claims in regard to his conviction.
·The applicant was abused and beaten in Sri Lanka and has accessed mental health counselling in Australia. He has difficulty remembering details such as dates and suffers from confusion.
The Court finds this to be an accurate summary of the protection claims advanced by the applicant in relation to this matter.
The IAA accepted the following aspects of the applicant's claims:
a)That he was a Tamil from Mannar in the Northern Province and as a child the applicant spent time in India in refugee camps: [14]-[15];
b)That the applicant was at an event in 2006 which was violently broken up by the SLA, and that he was stopped in 2006/2007 and mistreated by the SLA: [16]-[17];
c)That whilst he was living in Mannar he was expected to support the LTTE, and that he was mistreated and threatened if he did not do so. The IAA accepted that the applicant and his cousin supplied the LTTE with kerosene, and that his cousin disappeared in 2008 and has not been seen since and further that his brother-in-law was killed. The IAA found it plausible that these events occurred because the applicant's relatives provided support to the LTTE: [18]; and
d)That he assisted some refugees from India when fishing sometime in 2009 and that people in a white van visited the applicant's village to ask about him: [19].
Despite this, the IAA found that the applicant was a low level supporter of the LTTE and that he would not attract adverse attention now in Sri Lanka.
The IAA found that the instances of harm occurred some time ago in the context of the civil war, which has now concluded. Further, while the country information indicated that the Sri Lankan government was concerned with identifying Tamil activists who are working for Tamil separatism and to destabilise the unitary Sri Lankan state, the IAA found that the applicant did not have such a profile. The IAA noted that the situation in Sri Lanka has improved for Tamils since the civil war: [18]-[21].
Given that the IAA did not accept that the applicant was imputed with an LTTE profile or of interest to the authorities or others, the IAA did not accept that people would use information accessed because of the data breach to locate him.
The IAA also found that because the applicant is not of adverse interest to the authorities he would not be located because of army camps near his village: [22].
Based on country information and the applicant's profile, the IAA found that the applicant would not face a real chance of harm as a returning failed Tamil asylum seeker: [23].
The IAA accepted that the applicant departed illegally and, based on country information, found that he may be detained and questioned at the airport, fined for breaching the Sri Lankan Immigrants and Emigrants Act and may face a period of time held in prison: [29].
However, the IAA found that:
a)Any consequences of his illegal departure such as poor prison conditions or imposition of a fine did not amount to serious harm: [26]-[31]; and
b)Any penalties faced upon return were non-discriminatory laws of general application, and therefore did not amount of persecution for the purposes of s.5H(1)-5J(1) of the Act: [32].
The IAA concluded that there was not a real chance that the applicant would face a real chance of harm. Thus, he did not meet the criteria in s.36(2)(a) of the Act: [33]-[34].
In relation to the complementary protection criterion, the IAA largely relied on its earlier findings and concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia, there was a real risk that the applicant would suffer significant harm: [36].
The IAA also found that any period of questioning and detention upon return did not constitute significant harm as defined by s.36(2A) of the Act: [37]-[40].
Proceedings in this Court
In his application for judicial review, the applicant relies on 6 grounds of review:
1. The Immigration Assessment Authority’s (the ‘IAA’) assessment was unfair.
2. The IAA failed to consider submissions relevant and central to my case.
3. The IAA filed to consider an integer of my claim.
4. The IAA relied on irrelevant and incomplete information or considerations.
5. The IAA’s decision is ‘unreasonable’, ‘illogical’ or ‘irrational’.
6. The IAA’s decision is affected by apprehended and/or actual bias.
The applicant’s grounds of review are vague. Despite being given an opportunity to provide particulars in relation to his grounds for judicial review by a Registrar of this Court, the applicant did not provide any particulars or further written submissions that address the grounds of review.
A failure to particularise provides a basis for each of the grounds to be dismissed (AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 at [20] per Judge Lucev, approved on appeal in AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J. See also WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J (from which an application for special leave was refused: AQN15 v Minister for Immigration & Border Protection [2016] HCASL 183).
The Court notes, however, the recent decision of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8], in which His Honour commented that the consequences of a failure to particularise will depend upon the circumstances. His Honour observed that it will rarely be appropriate to simply dismiss an appeal ground in a migration case for lack of particularisation where the appellant seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. His Honour found that, in such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground (at [9]).
Here, the Court finds that the applicant should be given an opportunity to outline in detail what he means in relation to his six grounds of review. The Court explained to the applicant what the Court could and could not do and what the Court means when it refers to “jurisdictional error”. The Court outlined for the applicant the categories of jurisdictional error that commonly arise in relation to migration matters of this sort. The Court also explained to the applicant that it could not engage in “merits review” of the IAAs decision and explained what merits review means.
The applicant was asked to outline what, in his opinion, he felt the IAA “did wrong”. He did so, as discussed below.
Consideration
Ground 1
The Immigration Assessment Authority’s (the ‘IAA’) assessment was unfair.
In relation to ground 1, the Minister argued in written submissions as follows:
20.The applicant’s first ground could be interpreted as a failure to accord procedural fairness. The Minister submits that there is nothing to suggest that the IAA acted unfairly, and the IAA complied with the procedural fairness obligations in Division 3 to Part 7AA of the Act.
21.The IAA had regard to all the material given to it by the Secretary under s 473CB of the Act. It was required to proceed to undertake a review on the papers without interviewing the applicant or requesting further information: s 473DB(1).
22.The IAA properly assessed the new information provided by the applicant against the requirements of s 473DD of the Act, as it was required to do. As the IAA found that the detailed information about the applicant’s conviction did not meet the requirements of s 473DD, it was entitled to not have regard to it. The IAA also put the applicant on notice of the requirements of the Practice Direction that all documents that are not in English should be translated into English and both the translated and untranslated versions given to the IAA. The applicant subsequently provided an untranslated news article in Tamil. The IAA was not required to seek its own translation of this document: Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 at [25] (Wilcox, Whitlam and Marshall JJ). Nor was the IAA under any duty to make further enquiries about the contents of the document: s 473DC(2) of the Act; CMR16 v Minister for Immigration & Anor [2017] FCCA 1715 at [20] (affirmed on appeal in CMR16 v Minister for Immigration and Border Protection [2018] FCA 916). As this article was not before the delegate, the IAA was entitled to proceed to consider the new information against the requirements of s 473DD of the Act.
23.As s 473DE of the Act only requires that particulars of certain new information be given by the IAA to the applicant for comment, this provision was not enlivened in the circumstances of this case. The IAA was also not required to inform the applicant of specific reservations about his case and to provide him with an opportunity to respond before making its decision: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72]–[76]; DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [59].
24.The Minister submits that there was no denial of procedural fairness having regard to the statutory regime.
The applicant was asked to comment. He said, in effect, that, in his opinion, the IAA “did not look at the material before it properly”.
On one level, what the applicant is asking this Court to do is undertake merits review in the hope that the Court will, ultimately, come to a different conclusion than that reached by the IAA. In effect, the applicant would like the Court to review the evidence that was before the IAA and, ultimately, give him the visa that he seeks. As explained to the applicant, the Court cannot undertake a review of that sort: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.
The Court has reviewed the IAA’s decision in detail. There is no evidence before this Court that the IAA failed to look at relevant information or, in fact, relied on irrelevant information. There is simply no evidence that the IAA did not look at the material before it properly and fairly.
Ground 1 fails. There is no evidence of “unfairness” as advanced by the applicant.
Grounds 2, 3 and 4
2. The IAA failed to consider submissions relevant and central to my case.
3. The IAA filed to consider an integer of my claim.
4. The IAA relied on irrelevant and incomplete information or considerations.
The Minister addressed the applicant’s grounds 2, 3 and 4 together. That approach is appropriate given the content of those grounds.
In relation to grounds 2, 3 and 4 the Minister contended as follows:
25.These grounds do not identify what submissions or integers of the applicant’s claim were overlooked, or what considerations are said to be irrelevant.
26.The IAA only commits a jurisdictional error by taking into account irrelevant considerations or failing to take into account relevant considerations if it was bound, by the Act, to ignore those matters or to consider those matters respectively: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. There is nothing to suggest that the IAA considered matters or ignored matters that the Act obliged it to, conversely, ignore or consider.
27.The Minister notes that arguments based on the use by a IAA of relevant or irrelevant considerations are concerned essentially with the proper application of the law, not with the process of making particular findings of fact: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [74]; Elara v Assistant Minister for Immigration and Border Protection [2017] FCA 1565 at [43], citing SZNGI v Minister for Immigration & Citizenship [2010] FCA 154 at [22].
28.The IAA’s ultimate finding that the applicant was not entitled to protection was based on its assessment of the future risk of harm based on independent country information about the situation in Sri Lanka. Both of those matters are within the fact finding purview of the IAA: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] and NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11].
29.In this case the IAA properly had regard to the criteria in s 36(2)(a) and s 36(2)(aa) of the Act, as it was required to in reviewing the delegate’s decision. In considering whether the applicant faced a relevant risk of harm as prescribed in those sections on the basis of his past involvement with the LTTE, it accepted many of the applicant’s claims about the past events but given these events occurred around 9 years ago, it found that this did not give rise to a real chance or real risk of future harm. The Minister contends that all of the applicant’s claims were properly considered by the IAA.
In relation to ground 2, the applicant advised the Court that because he did not speak English properly, he, in effect, believes that he was not given an opportunity to participate. While the Court is sympathetic to the frustrations articulated by an applicant of this sort, particularly this applicant, the Court cannot find evidence on the material before it that the applicant was not provided an opportunity to participate and, indeed, provide information to the IAA as he did.
This matter arises within the context of a very strict statutory environment. While the applicant and other applicants like him might find that particular statute to be unfair, there is simply no evidence that the approach taken by the IAA in any way went outside of its powers, or that the IAA did not exercise its powers appropriately and fairly.
In relation to ground 3, specifically in relation to the abduction of his cousin, the Court notes that the IAA did, in fact, analyse that particular claim and the circumstances surrounding it. It addressed it at paragraph 11 in its decision. It then dealt with the submission in detail at paragraph 18 in its decision. It accepted, implicitly, that such an abduction had occurred, but then, at paragraph 14, concluded that this would not result in harm to the applicant. That was a finding that was entirely open to it on the evidence.
In relation to ground 4, the applicant suggested that his concern was in relation to the country information that had been assessed by the IAA. The Court notes that the determination of country information is entirely for the IAA. If this Court was to review the country information for error, that would require the Court to engage in merits review, something it cannot do: DVI17 v Minister for Immigration & Anor [2018] FCCA 241 (“DVI17”) at [39].
The accuracy of country information is a matter for the IAA, not a Court. The choice and interpretation of country information is a factual matter for the IAA alone, and this Court cannot review the merits of the IAA’s decision in this regard: DVI17 at [39].
Grounds 2, 3 and 4 fail.
Ground 5
The IAA’s decision was unreasonable, illogical or irrational.
In relation to ground 5, the Minister contended:
30.A claim of illogicality or irrationality can only be made out if it can be demonstrated that the IAA formed a view that no rational or logical decision maker could have arrived at on the same evidence: Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130]. Illogicality and irrationality may be considered not only in relation to the end result, but also in fact finding which leads to the end result: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at 47.
31.Here, the IAA largely accepted the applicant’s claims relating to events that occurred during the civil war in Sri Lanka. However, based on country information about the improvements in the security situation since the end of the civil war, the IAA found that the applicant did not have a profile which gave rise to a real risk of harm. The IAA’s reasoning and ultimate conclusion cannot be said to be illogical or irrational, rather, the Minister submits these findings were clearly open on the information before the IAA.
In relation to whether or not a decision is illogical, irrational or unreasonable the Court is guided by the principles outlined in Minister for Immigration v SZMDS (2010) 240 CLR 611 (SZMDS) at [131], as follows:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The Court also notes the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18, as follows:
[26] The rationality required by “the rules of reason” is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions. Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account.
[27] In Wednesbury Corporation, Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:
“If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.”
That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred.
[28] Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.” In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
(Citations removed)
The applicant was asked to explain what aspect of the IAA’s decision he believes was illogical, irrational or unreasonable. In effect, what the applicant said was that it was illogical that his wife had been given a visa, but that he had not been given a visa.
This is not particularly helpful for the applicant as it does not point to jurisdictional error. There is no information of any sort before this Court that allows the Court to make an assessment in relation to the applicant’s wife’s visa. However, the Court does note (at page 135 in the CB) that the applicant’s wife and children are not part of the applicant’s application for a protection visa or a SHEV. There are no claims before the IAA relevant to the wife’s application for a visa.
It cannot be said in the circumstances here that there is anything illogical or irrational in the IAA either not assessing the wife’s particular circumstances or coming to a conclusion that allowed it to find that the applicant himself is not entitled to the protection visa he is seeking. It is apparent that the IAA discharged its functions in a way required by the Act and that it correctly applied the criteria contained in the Act for the grant of a protection visa. The IAA provided extensive reasons to support its conclusions, and there is nothing here that can be seen to support the assertion that the findings are legally unreasonable.
The IAA made a proper evaluation of the material before it, pursuant to the Act. It cannot be said that there is anything in this decision that satisfies the requirements for a finding of illogicality.
Ground 6
The IAA’s decision was affected by apprehended or actual bias.
In relation to ground 6, the Court notes the Minister’s written submissions, as follows:
32.There is nothing in the IAA’s decision which suggest that there was any bias on its part. Insofar as the Applicant alleges actual bias, there is nothing in the IAA’s decision that indicates that the IAA brought a closed mind so as to sustain such an allegation. Nothing the IAA said indicates it was not open to persuasion. It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Gleeson CJ and Gummow J at [69].
33.Neither is there any basis for a reasonable apprehension of bias, the test for which is whether a fair-minded lay observer, who was properly informed as to the nature of the decision to be made, the matters in issue and the conduct complained of, might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [85]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].
34.To the extent that the applicant complains that the IAA had information before it about his criminal conviction which was prejudicial, the Minister submits that this could not give rise to any apprehended bias. It may be accepted that the applicant’s criminal record check at CB 134 was strictly irrelevant to the issues the IAA had to determine: CNY17 v Minister for Immigration and Border Protection [2018] FCAFC 159 (CNY17) at [132] per Moshinsky J. However, and critically, the same information was before the IAA in the form of the applicant’s visa application, his account at the SHEV interview and the delegate’s decision: CB 83, 151 and 194, see CNY17 at [134] per Moshinsky J; [160], [166] per Thawley J. The applicant then volunteered further details about the circumstances of his criminal offending in his submission to the IAA. Given the applicant provided the same information as the criminal record, the information cannot be considered sufficiently prejudicial: CNY17 at [135]-[136] per Moshinsky J, [166], [169]-[171] per Thawley J.
The applicant was asked to provide further details in relation to why he believed the decision-maker was biased. Unfortunately, no explanation was provided that assisted the applicant in this regard.
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven. There is nothing in the IAA’s decision here which suggests that there was any bias on its part, actually or apparently, against the applicant, or that the relevant IAA decision-maker approached the task of reviewing the material before it with a preconceived view as to the outcome or any way other than objectively.
Ground 6 fails.
Conclusion
For the reasons outlined above, there is no merit in any of the six grounds of review advanced by the applicant or otherwise apparent in the decision of the IAA dated 30 January 2018.
The applicant’s application for judicial review is, accordingly, dismissed.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 29 January 2019
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