BNL17 v Minister for Immigration

[2020] FCCA 435

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNL17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 435

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority made legally unreasonable finding or overlooked an integer of the applicant’s claims considered – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CB

Cases cited:

AOJ18 v Minister for Immigration [2018] FCAFC 220

CQG15 v Minister for Immigration (2016) 253 FCR 496

DAO16 v Minister for Immigration (2018) 258 FCR 175

Htun v Minister for Immigration (2001) 233 FCR 136

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Immigration v Yusuf (2001) 206 CLR 323

Singh v Minister for Immigration [2019] FCAFC 3

Applicant: BNL17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1073 of 2017

Judgment of: Judge Driver

Hearing date: 27 February 2020

Delivered at: Sydney

Delivered on: 27 March 2020

REPRESENTATION

Counsel for the Applicant: Ms F McNeil

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 17 March 2017 into this Court for the purpose of quashing it.

3. A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1073 of 2017

BNL17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 17 March 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant, a citizen of Sri Lanka, arrived in Australia at Christmas Island as an unauthorised maritime arrival on 3 November 2012.  On 28 April 2016, following the lifting of the bar by the Minister, he lodged a valid application for a Safe Haven Enterprise Visa (SHEV).[1]  His claims were set out in a statutory declaration.  On 26 October 2016, he attended an interview with the delegate.  On 30 January 2017, the delegate refused to grant the SHEV and the matter was referred to the Authority.[2]  On 23 February 2017 the applicant’s agent provided to the Authority a submission.[3]

   [1] Court Book (CB) 27-89

   [2] CB 132-148

   [3] CB 158-160

4. The applicant claimed to fear harm from the Sri Lankan authorities on the basis of his Tamil ethnicity, imputed support of the Liberation Tigers of Tamil Eelam (LTTE), his illegal departure from Australia and his status as a failed asylum seeker.  The applicant made the following factual claims (contained in a statement attached to his visa application):

   a)he was born at a named location in the Northern Province, was of Tamil ethnicity and Roman Catholic faith.  His family home was opposite an LTTE camp and some of the LTTE cadres would give him money to buy food and supplies for them;

   b)he worked at his first cousin’s hardware shop, where his first cousin had agreed to store materials for making bombs and the LTTE would come to collect pre-packaged boxes;

   c)in 2006, Sri Lankan security forces (CID) attacked the applicant’s home town.  Three men came into his house, beat him and raped his sister.  They escaped to the church, but were shot at and people were killed by grenades;

   d)after the attack in 2006, the applicant was targeted by the CID, including the men who had raped his sister, when going through checkpoints.  He was yelled at, threatened and pushed;

   e)in April 2009, his first cousin disappeared.  Several months afterwards, the CID questioned the applicant about his work at the hardware shop, beat him and put a pistol in his mouth;

   f)on 3 November 2010, the applicant was taken into the jungle by four CID officers and held at a camp, where he was questioned, tortured, and physically and sexually harmed for five days.  On the fifth day, he confessed to helping supply the LTTE through the hardware shop and was released;

   g)until he fled Sri Lanka for India in August 2012, he continued to be harmed by the CID.  He was taken to the army camp and interrogated, beaten and sexually assaulted; and

   h)the CID has been to his family home several times since he left Sri Lanka looking for him and harassing his parents for bribes.

5. The Authority, at [4], had regard to the material referred to it under s.473CB of the Migration Act 1958 (Cth) (Migration Act). The Authority was satisfied at [5] that there were exceptional circumstances to justify the consideration of the January 2017 Department of Foreign Affairs and Trade (DFAT) Report. The Authority considered at [6] that the 2017 Report was not specifically about the applicant, rather, it was about a class of persons of which the applicant was, or would be, a member and therefore noted that the requirement to put particulars of this information to the applicant did not arise. The Authority was satisfied at [7] that submissions provided by the applicant’s representative were not new information, and so considered them.

6. The Authority accepted at [13] the applicant’s claim that he and his sister were attacked by men in their home in 2006 and considered it plausible at [15] that these men would have manned checkpoints and harassed, threatened and kicked the applicant as claimed.  Noting the applicant’s own evidence at [15] that the incidents ceased when the men were transferred out of the area, the Authority was not satisfied at [16] that the applicant faced an ongoing threat.  The Authority accepted that the applicant believed that LTTE members lived opposite his home and that on occasion he bought items on their behalf, but it was not satisfied at [18] that these purchases included dangerous or militaristic items.  Noting that there was no evidence that he or his family had been harmed on this basis, the Authority was not satisfied at [19] that the applicant would be imputed with any connection to the LTTE on this basis.

7. The Authority accepted at [27] and [32] that the applicant was questioned and subjected to mistreatment, threats and harassment leading up to and including the November 2010 incident, and that the applicant may have been required to report to the authorities after his release.[4]  The Authority did not accept that the applicant was tortured, detained, mistreated or otherwise remained a person of interest to the authorities following his release in November 2010.  The Authority was satisfied at [33] that the applicant would not be imputed with high-level support for, membership of or involvement with, the LTTE or that he had a security profile.

   [4] CB 172 at [30] and [32]

8. Based on country information, the Authority found at [35] that Tamils from the north of Sri Lanka may continue to face difficulties on the basis of their religion, but found at [37] that it was not of a level to constitute serious harm.  The Authority further found at [38] that there were no laws that discriminated on the basis of religion.  The Authority concluded at [39] that the applicant did not face a real chance of serious harm on the basis of being a Tamil, a Tamil male from the north, or a Catholic.

9. The Authority was satisfied at [40] that, as the applicant departed Sri Lanka illegally, there was a possibility that he would be assessed by the authorities as having sought asylum in Australia, and that he may be questioned on return as part of the airport screening process.[5]  On the basis of country information, the Authority found that as a returned asylum seeker, the applicant would not be at risk of harm on the basis of any adverse security or criminal profile.  Having found that any profile the applicant may have had with the authorities was of a low level and any interest ceased in 2010, the Authority was satisfied at [42] that there was not a real chance that the applicant would be harmed on the basis of being a returned asylum seeker.

   [5] CB 174 at [41]

10. The Authority accepted at [45] that the applicant would be charged and fined for his illegal departure under the Immigrants & Emigrants Act (Immigrants & Emigrants Act), but found that he would not be given a custodial sentence. The Authority found at [45] that any fine imposed, or the requirement for any bail, surety or guarantee, would not constitute serious harm. The Authority accepted at [46] that there was a possibility the applicant could be detained for several days, but noted that country information indicated that any such detention would likely be brief and considered at [46] that the provisions and penalties of the Immigrants & Emigrants Act were applied on a non-discriminatory basis under a law of general application. Overall, the Authority was not satisfied at [47] that the applicant would face a real chance of persecution for any of the reasons claimed. The Authority therefore found at [48] that the applicant did not meet the requirements of s.36(2)(a) of the Migration Act.

11. The Authority had regard to its anterior findings of fact in finding that the applicant would not face a real risk of significant harm on the basis of his Tamil ethnicity, origination from the North of Sri Lanka,[6] actual or imputed political opinion or religion.[7]  In respect of the applicant’s illegal departure and circumstances on return to Sri Lanka, the Authority found at [54] that there was no indication that the applicant faced a real risk of significant harm during the investigation, questioning or while held in airport detention.

    [6] CB 176-177 at [52]

    [7] CB 176 at [51]

12. The Authority found that there was no evidence that prisoners awaiting prosecution under the Immigrants & Emigrants Act had been subject to the death penalty or had otherwise been arbitrarily deprived of their life or tortured.  The Authority further found at [55] that there was no indication that the authorities intentionally inflicted pain or suffering or extreme humiliation.  As such, the Authority found at [55] that the applicant’s experience of such prison conditions would not constitute significant harm.  The Authority also considered at [56] that the applicant would not be at risk of significant harm arising from his previous experiences of detention and torture as it was satisfied that even if briefly detained, he would be able to access appropriate care if required.  Overall, the Authority was not satisfied at [58] that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that the applicant would suffer significant harm.

The current proceedings

1. These proceedings began with a show cause application filed on 10 April 2017.  The application was allocated to the docket of Judge Barnes, but on 8 March 2019 at a callover, the matter was reallocated to me.

2. At the trial on 27 February 2020, I granted the applicant leave to file and rely upon a proposed amended application which was handed up in court.  The grounds as amended in that application are:

   1.The applicant claimed that, following an incident in November 2010 and up to July 2012, he was taken to army camps a number of times and interrogated and abused. The Immigration Assessment Authority (the IAA) found in its decision dated 17 March 2017 at [30] "I am not satisfied that the applicant was questioned after November 2010 in the way he has claimed". One reason the IAA made this finding was that “the applicant's family ... have not claimed to have been questioned, detained or mistreated in relation to the applicant’s security profile” in circumstances where "country information before the delegate indicates that families of those with a security profile ... are at risk of questioning and detention because of their association". This part of the IAA’s reasoning process involved illogical or irrational reasoning which was legally unreasonable.

   2.The applicant claimed that, following an incident in November 2010 and up to July 2012, he was taken to army camps a number of times and interrogated and abused. The IAA at [32] found that “I accept that [the applicant] was told to report to the authorities regularly”. The IAA also found at [32] that "the authorities were no longer interested in him when he was released" in November 2010. There is a tension between the IAA's acceptance of a claim that the applicant was told to report to the authorities regularly after November 2010, and the IAA's finding at [32] that the authorities were no longer interested in the applicant after they released him in November 2010.  In circumstances where the IAA accepted "that [the applicant] was told to report to the authorities regularly”:

   a) The IAA did not properly deal with this aspect of the applicant’s claims.

   b) Alternatively, the IAA’s finding that “the authorities were no longer interested in him when he was released” at the conclusion of the incident in November 2010 was legally unreasonable

   3. The applicant claimed that, following an incident in November 2010 and up to July 2012, he was taken to army camps a number of times and interrogated.  The IAA at [32] accepted that, following the incident in November 2010, the applicant “was told to report to the authorities regularly". The applicant at [50]-[52] of his statutory declaration dated 16 April 2016 set out his fears of return to Sri Lanka, including a fear of serious harm and punishment for 'failing to report to the army camp as required". In circumstances where the IAA accepted at [32] “that [the applicant] was told to report to the authorities regularly", it follows that it is likely that the applicant breached an obligation to report to the authorities when he fled to India in August 2012, in which case he may be punished for the breach of obligation to report on return to Sri Lanka. The IAA failed to deal with this integer of the applicant's claims.

3. The only evidence I have before me is the court book filed on 24 August 2017.

Consideration

Ground 1 – was the Authority’s finding at [30] unreasonable?

Applicant’s contentions

1. The applicant’s claims included the following:

   a)on 3 November 2010 the applicant was picked up by some CID officers, taken to a camp in a jungle area, and detained, interrogated, tortured and raped over five days.  On the fifth day, the applicant “confessed to helping supply the LTTE through the hardware shop”,[8] following which the CID released the applicant but told the applicant he “would need to report to the army camp when ordered to do so”;[9] and

   b)following the above incident and up to July 2012 he was taken to army camps a number of times and interrogated and abused.

   [8] CB 71 [38]

   [9] CB 71 [38]

2. In relation to the incident which commenced on 3 November 2010, the Authority “accepted the claims made in relation to the torture, sexual assault and rapes in the bunker in 2010”.[10]

   [10] CB 171 at [28]

3. In relation to the applicant’s claims that, following the November 2010 incident, the applicant was taken to army camps a number of times and interrogated and abused, the Authority found at [30]:

   I am not satisfied that the applicant was questioned after November 2010 in the way he has claimed.  Such intense questioning would suggest the applicant was a person of high-level interest to the authorities but he has not claimed, and there was no evidence, that he was charged with any terrorism offences, taken to a detention centre or a rehabilitation camp.  While I accept that the applicant may have been required to report to the authorities after his release, it is implausible that he was of such interest that he would be called back repeatedly and subjected to the claimed questioning and mistreatment … In reaching this view I have also considered that the applicant’s family … have not claimed to have been questioned, detained or mistreated in relation to the applicant’s security profile.  While the applicant claims that they have been asked why he did not report and have been harassed to pay bribes, country information before the delegate indicates that families of those with a security profile … are at risk of questioning and detention because of their association.  As noted above, there is no evidence that any member of the family has been questioned about the applicant’s involvement with the LTTE.

4. The Authority’s reasons for decision at [30] indicate that the Authority did not accept the applicant’s claims concerning questioning after November 2010 for two reasons as follows:

   a)first, “such intense questioning would suggest the applicant was a person of high-level interest to the authorities”, but there was no other evidence to suggest that the applicant was a person of high-level interest; and

   b)secondly, “the applicant’s family … have not claimed to have been questioned, detained or mistreated in relation to the applicant’s security profile” in circumstances where “country information before the delegate indicates that families of those with a security profile … are at risk of questioning and detention because of their association”.

5. The applicant has the following complaint about the second reason.  The Authority stated that “country information before the delegate indicates that families of those with a security profile … are at risk of questioning and detention because of their association”.  Presumably, this information is from one of the three country information reports listed in the footnotes of the delegate’s decision at CB 140.[11] 

   [11] DFAT Country Information Report Sri Lanka dated 18 December 2015, US Department of State Sri Lanka country report dated 13 April 2016, or UK Home Office Sri Lanka Tamil Separatism dated 19 May 2016

6. Country information that “families of those with a security profile … are at risk of questioning and detention because of their association” assists a decision-maker in assessing the risk of persecution to family members of those with a security profile.  However, the applicant contends that the Authority is said to have used this information the other way round. The Authority has used this information to reason that, because family members of the applicant were not “questioned about the applicant’s involvement with the LTTE”, it follows that the authorities were not concerned that the applicant was involved with the LTTE and therefore the applicant did not have a security profile.  However, the applicant contends that the fact that family members of a person are not questioned does not mean that the person does not have a security profile.  There may be many reasons why the authorities decide not to question family members of a person they suspect had or has links with the LTTE.  If the country information before the Authority had stated that “families of those with a security profile … are questioned and detained because of their association”, it would have been appropriate for the Authority to reason that, because family members of the applicant had not been questioned, it followed that the applicant did not have a security profile.  However, the country information before the Authority stated that “families of those with a security profile … are at risk of questioning and detention because of their association”.  The applicant submits that it was inappropriate for the Authority to reason in reliance on this country information that, because family members of the applicant had not been questioned, it followed that the applicant did not have a security profile.  In the applicant’s submissions, the Authority’s error was an error in reasoning which involved legal unreasonableness. 

1. In relation to general principles concerning illogical and irrational fact-finding, in DAO16 v Minister for Immigration[12] at [30] the Full Federal Court stated:

   [12] (2018) 258 FCR 175

   (1) …

   (2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

   … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

   (3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration & Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration & Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

   (4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)) …

2. In AOJ18 v Minister for Immigration[13] at [31] the Full Federal Court stated:

   It has been held that the factual findings of the Tribunal must be rationally made and based on probative material and logical grounds.

   [13] [2018] FCAFC 220

3. In Singh v Minister for Immigration[14] at [61] the Full Federal Court stated:

   The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 ; Minister for Immigration & Border Protection v SZVFW (2018) 357 ALR 408 at [54]–[60] (Gageler J); [78]–[79] (Nettle and Gordon JJ); [135] (Edelman J). Such a conclusion might be drawn, for example, if it:

   (1)is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ);

   (2)“lacks an evident and intelligible justification”: Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);

   (3)is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration & Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ).

   [14] [2019] FCAFC 3

Resolution

1. I prefer the Minister’s submissions in relation to the first ground.

2. I do not accept that the Authority’s findings at [30] that the applicant had not been questioned after November 2010 in the way he claims, in part because his family had not been questioned about his involvement with the LTTE, was legally unreasonable.  The applicant’s submissions point out that because a person’s family has not been questioned does not necessarily mean that they are not of interest.  While that can be accepted, it does not demonstrate that the Authority’s reasoning at [30] demonstrates the “extreme” illogicality required to make out legal unreasonableness.[15]  “Emphatic disagreement” with the Authority’s reasoning is not sufficient to make out illogicality.[16]  If reasonable minds could differ about the assessment of evidence, that assessment cannot be said to be illogical or irrational.[17]

   [15] CQG15 v Minister for Immigration (2016) 253 FCR 496 at [59]-[61]; DAO16 v Minister for Immigration at [30]

   [16] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124]

   [17] SZMDS at [131]

3. The fact that the applicant’s family had not been questioned about his alleged LTTE involvement was a rational consideration in assessing whether the applicant had been questioned after November 2010 in the way he claimed, because as the Authority states at [30] if the applicant had been so questioned this would suggest that he was of high-level interest to the authorities.  There is nothing irrational or illogical about taking into account that the applicant’s family had not been questioned about his LTTE involvement in such circumstances.  As the Authority noted, country information indicated that family members of those with a security profile (in particular male Tamils) were at risk of questioning and detention.  It was thus logical for the Authority to reason that if he was of high-level interest as his claims indicated then his family would have been so questioned.

4. Further, the applicant’s family’s lack of questioning was the second reason for the Authority’s findings that he had not been questioned after November 2010 in the way he claimed.  The first was that the applicant had not been charged or taken to a detention centre or rehabilitation camp.  The applicant does not suggest this reasoning was legally unreasonable, and legal unreasonableness is unlikely to be established where there are other bases for the finding complained of.[18]

   [18] CQG15 at [60]

5. Legal unreasonableness has not been shown in the Authority’s finding at [30], so the first ground fails.

Ground 2 – was the Authority’s finding at [32] unreasonable?

Applicant’s contentions

1. The applicant claimed that after the five day incident of detention, interrogation and torture which commenced on 3 November 2010, the authorities continued to be interested in the applicant.  The applicant claimed in his statutory declaration dated 16 April 2016 that after the November 2010 incident:[19]

   Until I fled Sri Lanka to India illegally in August 2012, I was seriously mistreated and harmed by the Sri Lankan security forces many times by different officers.  I was taken to or made to go to army camps many times … between 10-15 times

   The applicant’s statutory declaration at [41]-[46] provides details of the circumstances in which he was asked to report to the army camps, and the treatment he experienced when he reported to the army camps. 

   [19] CB 71 [41]

2. In relation to these claims, the Authority found at [32]-[33]:

   I accept that [the applicant] was told to report to the authorities regularly but I do not accept that the authorities would release the applicant if he remained a person of interest for LTTE activities/support.  I find that although he may have been a person of interest in November 2010, the authorities were no longer interested in him when he was released.

   Considering all of the evidence, I do not accept that the applicant was tortured, detained mistreated or otherwise remained a person of interest to the authorities following his release in November 2010 … I am satisfied that any security profile he may have had was of a low level.  I am also satisfied that any profile he may have as a result of his relationship to G was also of a low level.  I am also satisfied that he does not have a security profile now.

3. The applicant’s complaint about these findings is as follows.  There is a tension between:

   a)the Authority’s acceptance of a claim that the applicant was told to report to the authorities regularly after November 2010; and

   b)the Authority’s finding at [32] that the authorities were no longer interested in the applicant after they released him in November 2010, and the Authority’s finding at [33] that the applicant “does not have a security profile now”.

4. If the authorities required the applicant to report to them regularly after November 2010 (and the Authority appears to have implicitly accepted that the requirement to report continued up to the date the applicant fled to India in August 2012, and the applicant reported to the authorities as required), then the applicant was of some interest to the authorities up to and including the time he fled to India in August 2012.  Why else would the authorities require the applicant to “report to the authorities regularly”?

5. The applicant contends that, in circumstances where the Authority accepted “that [the applicant] was told to report to the authorities regularly”:

   a)the Authority did not properly deal with this aspect of the applicant’s claims.

   b)alternatively, the Authority’s finding that “the authorities were no longer interested in him when he was released” at the conclusion of the five day incident in November 2010 was legally unreasonable.

6. The Authority’s error is said to arise from the fact that its reasons for decision do not explain how the applicant could not be of interest to the authorities when he was required to report to the authorities from December 2010 to August 2012.  While the Authority does not have an obligation to make findings or give reasons for particular findings, its failure to do so may indicate jurisdictional error.  In Minister for Immigration v Yusuf[20] at [69] the High Court stated:

   Similarly, a court which is asked to review the decision is able to identify the tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this court in proceedings brought under s 75(v) of the Constitution.

   [20] (2001) 206 CLR 323

Resolution

1. I also prefer the Minister’s submissions in relation to the second ground. 

2. The second ground claims that the Authority did not “properly” deal with the applicant’s claim that he was told to report regularly after November 2010, and that the Authority’s finding at [32] that the authorities were no longer interested in him after his release in November 2010 was legally unreasonable.  The applicant had in fact claimed that he was told he would need to report “when ordered to”.[21]  This may be what the Authority is referring to at [32] when it refers to the applicant being told to report “regularly”.  Contrary to the applicant’s submissions, the fact that the applicant was required to report when ordered to is not inconsistent with the authorities no longer being “interested” in him.  It is apparent from [32] that what the Authority means by this is that a person of interest to the Sri Lankan authorities is a person engaging in LTTE activities or support.  The Sri Lankan authorities, having established that the applicant was not of such interest, being asked to report when ordered to does not necessarily indicate otherwise.  In context it might indicate no more than that he had been of such interest in the past, as the Authority accepted.  There is no obvious contradiction in the Authority’s findings, so this ground must fail.

   [21] CB 171 [28] (referring to CB 71 [38])

3. I note that the Authority mentioned the alleged request to report at [28] of its reasons.  The description of the claim at [32] was not entirely accurate, but, to the extent that the claim was considered (which I consider below) the claim was, in my view, reasonably dealt with.  To the extent that the claim was not dealt with at all, the issue of unreasonableness is not relevant.

Ground 3 – did the Authority fail to deal with an aspect of the applicant’s claims?

1. I find that this ground has been established. 

2. As stated in relation to Ground 2 above:

   a)the applicant claimed that after the five day incident of detention, interrogation and torture which commenced on 3 November 2010, the authorities continued to be interested in him; and

   b)the Authority at [32]-[33] “accept[ed] that [the applicant] was told to report to the authorities regularly”, although the Authority did not accept that the applicant was tortured, detained or mistreated on the occasions he reported to the authorities.

3. The applicant at [50]-[52] of his statutory declaration[22] set out his fears of return to Sri Lanka.  One fear was a fear of serious harm and punishment for ‘failing to report to the army camp as required”.[23]

   [22] at CB 73

   [23] CB 73 at [51]

4. In circumstances where the Authority accepted at [32] “that [the applicant] was told to report to the authorities regularly”, it follows that it is likely that the applicant breached an obligation to report to the authorities when he fled to India in August 2012.  The applicant, in his statutory declaration dated 16 April 2016 at [51], expressly claimed a fear of punishment for “failing to report to the army camp as required”.  The applicant’s complaint is that the Authority did not deal with this integer of his claims.

5. More specifically:

   a)the Authority did not deal with this integer of the applicant’s claims at [33] when it found that the applicant “does not have a security profile now”;

   b)the Authority did not deal with this integer of the applicant’s claims at [42] when it found that “any interest [in the applicant] ceased in 2010” and “there is not a real chance he would be harmed or mistreated because he is a returning asylum seeker”; and

   c)the Authority did not deal with this integer of the applicant’s claims at [47] when it found:

   Overall, I am not satisfied that the applicant will face a real chance of persecution on the bases of his Tamil race, an actual or perceived support for the LTTE, his family connections to the LTTE … and for being a returned asylum seeker who fled Sri Lanka illegally.

6. Where a decision-maker in respect of a protection visa application fails to deal with a claim or integer of a claim by an applicant, this is a jurisdictional error, as in NABE v Minister for Immigration (No 2)[24] at [55]-[63] where the Full Federal Court stated in part:

   [24] (2004) 144 FCR 1

   [55] … Where the tribunal fails to make a finding on “… a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction …

   …

   [58] The review process is inquisitorial rather than adversarial. The tribunal is required to deal with the case raised by the material or evidence before it: …. There is authority for the proposition that the tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated … It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 ; 199 ALR 265 ; [2003] FCAFC 120 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the tribunal when it is apparent on the face of the material before the tribunal …

   [63] … It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. 

7. In Htun v Minister for Immigration[25] at [42] Allsop J (as he then was) stated:

   The “participation in the Karen community and the political groups” could be said to have been dealt with by the tribunal dealing with the appellant's activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a “relevant” fact. The tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; 66 ALR 299 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 … It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act, for example ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in reg 866 to the “claims” of the applicant for example 866.211, make it clear that the tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation — that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The tribunal did not deal with the latter basis of the appellant's sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion.

   [25] (2001) 233 FCR 136

8. The applicant contends that the Authority failed to consider his claim to fear harm for failing to report as required after he fled to India in August 2012.  I accept from [48],[26] and [51][27] that this claim concerns the applicant’s mother being told to tell the applicant to report to the army camp in August 2012 following his alleged interrogation in June 2012. 

   [26] CB 72

   [27] CB 73

9. The Minister contends that, given the Authority’s findings that the applicant had not been tortured, detained, mistreated or otherwise remained a person of interest following his release in November 2010[28] this claim must be taken as having been rejected as inconsistent with findings of greater generality.

   [28] CB 173 [33]

10. I disagree.  Relevantly, the applicant claimed at [47], [48] and [51] of his statutory declaration:[29]

    [29] CB 72-73

    I was sick and tired of this mistreatment by the Sri Lankan security forces.  I felt trapped.  I felt there was not future or life for me in Sri Lanka.  There was no-one to complain to because no-one could help.  Even if I did complain, it would have caused more trouble for me.  I could never escape this mistreatment unless I fled Sri Lanka.  I would not be safe anywhere in Sri Lanka.  I began to make arrangements to flee the country.

    The day before I fled, the security forces came to my family home.  I was not home but they asked my mother for me to report to the camp.  I did not go.  On 15 August 2012, I fled Sri Lanka by boat illegally to India.  I remained in Tamil Nadu, India for about two months.  I was never registered with the Indian authorities as I entered India illegally.  I left India by boat on 17 October 2012 and arrived on Christmas Island on 3 November 2012 seeking asylum.

    …

    I fear that if I am forcibly returned to Sri Lanka I will be detained and interrogated by the authorities and security forces either at the airport or shortly after returning to my home area.  I fear that the authorities will seek information about me from the security forces in my home area.  This will be problematic given their previous adverse interest in me, my close connection to … and me failing to report to the army camp as required.  I fear that the authorities will, because of all the stated reasons, suspect that I am opposed to the Sri Lankan government and have links to the Tamil independence movement and LTTE.  I fear they will violently interrogate, physically and sexually harm me again.  I fear that having fled Sri Lanka illegally and having failed to report to the army camp their suspicion that I was more heavily involved in the LTTE, that I knew more than what I was admitting and had something to hide will be increased.

1. There was no express consideration by the Authority of either the applicant’s claimed fear of having failed to report as required or his reasons for going to India.  In my view, a rejection of these claims cannot be inferred from the Authority’s reasons concerning prior reporting events (that is, after 2010) because this was a new reporting obligation later in time than those dealt with by the Authority.  The applicant clearly claimed that there was a link between his departure for India, the new reporting obligation and his failure to comply with it.  None of this was considered by the Authority.  These integers of the applicant’s claims were material to the outcome before the Authority and needed to be considered.  They were not, and the error goes to jurisdiction.

Conclusion

1. I conclude that the applicant has established that the decision of the Authority is affected by jurisdictional error.  I will order that he receive relief in the form of the Constitutional writs of mandamus and certiorari.

2. I will hear the parties as to costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  27 March 2020