BBK17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 1668
•1 December 2023
FEDERAL COURT OF AUSTRALIA
BBK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1668
Appeal from: BBK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 318 File number: VID 298 of 2022 Judgment of: LOGAN J Date of judgment: 1 December 2023 Catchwords: MIGRATION – appeal of a judicial review decision by the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) of a Minister’s decision not grant the applicant a Safe Haven Enterprise visa, affirming the decision of the Immigration Assessment Authority (Authority) – whether the primary judge fell into jurisdictional error by not finding that the Authority failed to consider a relevant consideration that the appellant had been detained and interrogated by Sri Lankan authorities and alternatively whether the appellant is at risk of torture if removed to Sri Lanka – whether the primary judge erred in not finding that the Authority wrongly interpreted the Migration Act 1958 (the Act), specifically what is a ‘real chance … the person would be persecuted’ (s 5J(1)(b)), what constitutes a ‘well-founded fear of persecution’ (s 5H(1)(a) and ‘real risk’ of significant harm within the meaning of s 36(2)(aa) of the Act – whether the primary judge fell into error in not finding the Authority was unreasonable in its finding there was no well-founded fear or persecution or a real risk of significant harm as provided for under s 36(2)(a) or s 36(2)(aa) of the Act – where the proper function of judicial review is not to scrutinise an administrative decision to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) and Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 considered – where, on account of using different language to describe the appellant’s treatment by Sri Lankan authorities, the Authority did not fail to consider a relevant consideration or integer per Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALRJ 1088, Wu Shan Liang applied – where the Authority was entitled to rely upon contemporary information in a Department of Foreign Affairs and Trade country report to be satisfied there was no ‘real risk’ of significant harm within s 36(2)(aa) of the Act; there was no error of unreasonableness – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 473DB, 473EA, Pt 7AA Cases cited: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223
Attorney-General (NSW) v Quin (1990) 170 CLR 1
BBK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 318
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Dranichnikov v Mininster for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Lyon Nathan Limited v Rossington Holdings Pty Ltd, unreported, NSWCA 40262/92, Friday, 22 May 1992
Minister for Immigration and Citizenship v Li (2013) 214 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 25 Date of hearing: 1 December 2023 Counsel for the Appellant: Mr A Krohn Solicitor for the Appellant: Ambi Associates Counsel for the First Respondent: Mr A Barrington Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 298 of 2022 BETWEEN: BBK17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal to be fixed by a Registrar, in a lump sum, if not agreed.
3.The first respondent’s name be changed to Minister for Immigration, Citizenship and Multicultural Affairs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The appellant is a citizen of Sri Lanka. He is of Tamil ethnicity. He came to Australia as an unlawful maritime arrival as far back as 2012. On 30 October 2015, the appellant lodged with the department, now administered by the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), an application under the Migration Act 1958 (Cth) (the Act) for that class of visa known as a Safe Haven Enterprise visa. Over a year later, on 22 December 2016, a delegate of the then Minister decided to refuse to grant the appellant that visa pursuant to that application. As the Act required, that decision was then referred to the Immigration Assessment Authority (the Authority) for consideration and determination pursuant to Pt 7AA of the Act.
On 17 February 2017, the authority (constituted by Ms Natalie Becke, reviewer), for reasons given in writing that day, decided to affirm the Minister’s delegate’s decision not to grant the applicant the visa for which he had applied.
The appellant then sought promptly the judicial review of the Authority’s decision by what is now known as the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court). It was not until 7 September 2021 that the Circuit Court was able to hear that judicial review application. On 6 May 2022, that court decided to dismiss, with costs, the appellant’s judicial review application: BBK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 318. Once again, promptly, the appellant appealed to this Court against the order of dismissal and the related costs order. The grounds of appeal are these:
Grounds of appeal
1.The Federal Circuit and Family Court at first instance erred in not finding that the Second Respondent (“the Authority”) fell into jurisdictional error in that it failed to consider a relevant consideration.
Particulars
a)The Authority did not consider the Appellant's claims to have been beaten when detained and interrogated.
b)The Authority did not consider information about torture in detention, including information put before the First Respondent’s (“the Minister’s”) department in submissions on behalf of the Appellant, other information before the Minister’s delegate and information in the report dated 24 January 2017 by the Australian Department of Foreign Affairs and Trade (“DFAT”), paras 4.16 and 4.19)
c)Further or in the alternative to particular (b) to this Ground, the Authority did not consider the question whether the Appellant may face torture in detention on his return to Sri Lanka.
2.The Federal Circuit and Family Court at first instance erred in not finding that the Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars
The Authority’s conclusions that the Appellant was not a person owed protection under sections 36(2)(a) and 36(2)(aa) show that it erred in interpreting or applying the terms “real chance .... that the person would be persecuted” in section 5J(1 )(b) of the Migration Act 1958 (“the Act”), “well-founded fear of persecution” within section 5H(1 )(a) of the Act, and “real risk” of significant harm within the meaning of section 36(2)(aa) of the Act, despite:
(i) the evidence of incidents of torture in Sri Lanka;
(ii) the evidence of an entrenched culture of torture in Sri Lanka;
(iii)the evidence that DFAT cannot verify information and that DFAT does not monitor after people return to Sri Lanka.
3.The Federal Circuit and Family Court at first instance erred in not finding that the Authority fell into jurisdictional error in that it was legally unreasonable.
Particulars
Further or in the alternative to Ground 2 of this application, the Authority was unreasonable in not finding that the Appellant had a well-founded fear of persecution or a real risk of significant harm such as to be owed protection under section 36(2)(a) or 36(2)(aa) of the Act, given:
(i) the evidence of incidents of torture in Sri Lanka;
(ii) the evidence of an entrenched culture of torture in Sri Lanka;
(iii)the evidence that DFAT cannot verify information and that DFAT does not monitor after people return to Sri Lanka.
These grounds replicate grounds of review but with the refinement that on any or each of them the learned Circuit Court judge ought to have upheld the related ground of review.
Over 30 years ago now, in Lyon Nathan Limited v Rossington Holdings Pty Ltd, unreported, NSWCA 40262/92, Friday, 22 May 1992 (Lyon v Rossington), Gleeson CJ, in his then capacity as Chief Justice of New South Wales, with whom Clarke and Handley JJA agreed, stated in disposing of an appeal:
Having listened to the interesting argument advanced by senior counsel for the appellant, I find myself in complete agreement with the judgment of McClelland J and with his Honour’s reason for judgment. For those reasons, which for the purposes of this appeal I adopt as my own, I consider the appeal should be dismissed with costs.
I do agree, with respect, with the reasons of the learned Circuit Court judge, but to dispose of this appeal just by an expression of the kind of agreement and incorporation by reference voiced by Gleason CJ in Lyon v Rossington would not in the circumstances of this case do justice to the submissions ably made on the appellant’s behalf on the appeal by Mr Krohn of counsel, nor would they do justice to the riposte made to those submissions by Mr Barrington, of counsel, on behalf of the Minister.
Before turning to individual grounds of appeal, it is desirable to make some overarching observations as to matters of principle with respect to the reasons of officers of the executive of whom the person constituting the Authority was one, the role of a court conducting judicial review and further the role of the Authority in discharging its review function under Pt 7AA of the Act.
The core function of the Authority is, subject to that part, to review what is termed a fast track reviewable decision as referred to it: see s 473DB of the Act. Having so done, the authority is obliged to make a decision which sets out in writing the terms of that decision, the reasons for that decision and also the day and time that the statement containing both the decision and reasons is made: see s 473EA(1) of the Act.
At common law, an administrator is not obliged to give reasons for an administrative decision: Public Service Board (NSW) v Osmond (1986) 159 CLR 656. But in modern times, it is very often the case that, as s 473EA of the Act exemplifies, Parliament chooses to subject an administrator to an obligation to give reasons. It is in that context that observations made by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang), at 271 to 272 under the heading “The Proper Role of a Reviewing Court” are of enduring importance. With reference to a statement made by the Full Court in the judgment under appeal in Wu Shan Liang, it was stated in the joint judgment of Brennan CJ and Toohey, McHugh and Gummow JJ, at 271 to 272:
When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of an administrative decision-maker. The court continued, “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
Their Honours continued in the joint judgment in Wu Shan Liang at 272 by making these statements:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.
Their Honours then made reference by way of example to an even by then seminal statement concerning the role of the judicial branch on judicial review by Sir Gerard Brennan in Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35 to 36.
The familiarity of encounter in the time which has elapsed since those statements were made in the joint judgment in Wu Shan Liang should in no way diminish their importance and their translation into a principled restraint both in the original jurisdiction, in the hearing and determination of judicial review cases, and in the exercise of this Court’s intermediate appellate jurisdiction, with respect to outcomes on judicial review. Were there any doubt about that – and there should not be – that doubt was emphatically put to rest, in my view, recently in the joint judgment of Kiefel CJ and Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1/2021) at in particular [22] through to and including [27].
On the one hand, the judicial review process must not be conducted on the basis of an expectation of the executive in complying with a statutory obligation to give reasons that yields a standard which would make the conduct of public administration by an average civil servant endeavouring in good faith to discharge a statutory function either an impossibility or productive of inexorable delays in the orderly administrative decision-making process. On the other hand, a person seeking an administrative decision is entitled to expect that a claim or application for that decision will, as to its outcome and where an obligation to give reasons is imposed, be explained in a way which evidences that there has been an engagement with that claim by the administrative decision-maker. That is the point made in the joint judgment in PlaintiffM1/2021, at [27]:
27None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
Where such an engagement is not present in respect of what has been termed an integer of a claim, either or each of two separate, but not unrelated, jurisdictional errors may be manifested. There may be a manifested failure by the decision-maker to discharge the statutory function, here that of review, or there may be a denial of procedural fairness to that applicant: see Dranichnikov v Mininster for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov), at [24] to [25] and [95]. It is no coincidence, with respect, that there is an express reference to Dranichnikov in the joint judgment in Plaintiff M1/2021, at [27], fn 54.
The satisfaction as to visa criteria in this case turned on satisfaction as to a real chance of the existence of the criteria as specified either in s 36(2)(a) or s 36(2)(aa) of the Act as the notion of a real chance had come to be explained in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. It may perhaps be that the appellant’s prospects of engendering satisfaction under either of the bases upon which a visa might have been granted to him would have been very different, having regard to the material which came to be before the Authority if that material had excluded material concerning developments after 2012 in Sri Lanka and in relation to persons returning to Sri Lanka after an illegal departure, had the decision been made in 2012, shortly after his arrival. But that is not this case. The Authority was perfectly entitled to, and did, consider material concerning these subjects which revealed a much more benign position, depending upon which body of material one chose to act upon.
Ground 1 is multifaceted in its endeavour to show that the primary judge was in error in concluding that there was no failure to consider a relevant consideration. The relevant consideration is, of course, the claim as made for the visa, including all of its integers. The burden with that is that at [4] of the Authority’s reasons, there is a fair summary of the appellant’s claims for protection. I say “fair” because the summary is not a perfect summary.
In relating a claim with respect to one incident, the authority refers to the appellant’s having been “slapped several times across the face”. What the appellant had stated in his statement at [26] was that he had been detained, questioned and “slapped and beaten”. It is, however, clear from [31] of the Authority’s reasons that the Authority is referring to the incident which the appellant describes in his statement, and that is so even though the authority has again made reference to “slapped several times”. It would, in my view, be defiant of what is stated in the joint judgment in Wu Shan Liang to regard the difference in language but not in substantive acceptance of an account as indicative of a failure to consider an integer of a claim and thus the making of errors of the kind described in Dranichnikov.
Beyond that, the appellant as to particulars (b) and (c) of appeal ground 1 made very particular reference to parts of a detailed submission made on the appellant’s part by his solicitors and migration agents and related supporting material in support of the granting of a visa to the appellant. The end to which this was directed was not, I accept, a solicitation to engage in merits review but rather to highlight a submission that there had not been an engagement by the authority with the claim as made and thus a failure to discharge the statutory function or a denial of procedural fairness.
It was frankly conceded on behalf of the Minister, as it had to be in light of the Authority’s reasons, that there was no explicit reference to this submission other than a generic statement as to having considered all the material referred, which included the submission. But the point was also made on behalf of the Minister, which was an accurate one, that regard to the Authority’s reasons at [12] and [34], fn 13 disclosed that the Authority had referred to particular material which was enclosed with the submission, namely, material from the United Nations High Commissioner for Refugees and the British Home Office.
I have given quite anxious consideration to whether or not the Authority really did or did not ignore, or overlook, a substantial and clearly articulated argument or misunderstand the case being made, to adopt language used in Plaintiff M1/2021, at [27]. These are not, with all due respect, reasons which are an exemplar of perfection. One might have expected an explicit reference to the submission made by the solicitor and migration agent, which was a very careful one, indeed. However, it is emphatically not the province of the judicial branch to act as some type of public service inspector, only to determine whether materially the statutory function conferred has, or has not, been discharged and to do so bearing in mind what was stated as to administrator’s reasons in Wu Shan Liang.
So doing leads me to the conclusion that the Authority did come to grips with the claim as made both in respect of the position immediately upon return to Sri Lanka as an illegal immigrant and further as to the position thereafter. It is just that the Authority chose to act upon a contemporary position in Sri Lanka as revealed in a Department of Foreign Affairs and Trade country report. Further, the references which the Authority did make to other material do indicate that the Authority was cognisant of other material which could only have come from a consideration of the submission made on behalf of the appellant. So in my view, the learned primary judge was right to reject the ground of review reflected in appeal ground 1, as I likewise reject that ground of appeal.
Much of what I have stated is sufficient to dispose of appeal ground 2. There was material in the form of the Department of Foreign Affairs and Trade report as referred to by the Authority which, if accepted, was rationally and reasonably capable of engendering viewed through the prism of a real chance an absence of satisfaction either for the purposes of s 36(2)(a) or s 36(2)(aa) of the Act.
That conclusion is also, in my view, dispositive of ground 3, and that is so even though in Minister for Immigration and Citizenship v Li (2013) 214 CLR 332, at [67], it was stated in the joint judgment that what was said by Lord Greene MR in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, was not exhaustive of what might amount to unreasonableness.
What cannot amount to unreasonableness is an administrative decision-maker who has properly directed him or herself to the statutory criterion then formed a view as to whether he or she is or is not satisfied by reference to material reasonably capable of engendering in this case an absence of satisfaction. The Department of Foreign Affairs and Trade report as to the position in Sri Lanka both upon return as well as thereafter was quite capable reasonably and rationally of engendering the absence of satisfaction which the Authority recorded in its reasons under the respective headings Returning Asylum Seeker From Australia, Illegal Departure at [20] to [27] and Risk of Significant Harm at [31] to [36] and a related conclusion as to complementary protection at [37].
What follows from the foregoing is that the appeal must be dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 22 December 2023
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