BPC15 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1093
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OFAUSTRALIA
(DIVISION 2)
BPC15 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1093
File number(s): ADG 504 of 2019 Judgment of: JUDGE BROWN Date of judgment: 29 November 2023 Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – citizen of Sri Lanka – where the applicant participated in a political demonstration in Sri Lanka – where the applicant boarded a boat assuming it was a fishing trip – where the applicant arrived in Australia by the same boat – where the Tribunal found the applicant lacked credibility – whether the applicant would face a real chance of suffering serious or significant harm if returned to Sri Lanka – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 65, 474, 476, 477
Migration Regulations 1994 Sch 2
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Border Protection v SZUXN [2016] FCA 516
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZJSS (2010) 85 ALJR 306
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
MZARJ v Minister for Immigration & Border Protection (2016) FCA 1303
Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59
Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of hearing: 9 November 2023 Place: Adelaide Applicant: Appeared in person, with the assistance of an interpreter Solicitor for the First Respondents: Mr Ellison, The Australian Government Solicitor Solicitor for the Second Respondent: Submitting notice filed, save as to costs ORDERS
ADG 504 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BPC15
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application filed 11 December 2019 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of FIVE THOUSAND AND FOUR HUNDRED DOLLARS ($5,400.00).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] made on 5 November 2019. This decision confirmed an earlier decision of the Delegate of the Minister for Immigration & Citizenship,[2] made on 23 September 2013, not to grant him a Protection Visa,[3] pursuant to the provisions of section 65 of the Migration Act 1958 (Cth).[4]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “the Ministerial Delegate” or “the Delegate”.
[3] Hereinafter referred to as “the visa” or “the Protection Visa”.
[4] Hereinafter referred to as “the Act”.
In summary, the Tribunal did not accept that there was a real chance that the applicant would suffer serious harm, amounting to persecution, if returned to Sri Lanka, because of political opinions held or imputed to him; or because he was involved in people smuggling to Australia; or because he was a failed asylum seeker. Accordingly, none of the criteria provided by section 36(2)(a) of the Act were satisfied.
In addition, it was found that none of the complementary protection criteria arising under section 36(2)(aa) were engaged indicating that the applicant would suffer significant harm if so returned.
BACKGROUND
The applicant was born on 9 May 1980 in Chilaw, in the Puttalam District of the North Western Province of Sri Lanka. He is a Sri Lankan national. Between 1997 and May 2012, he worked as a fisherman in the Puttalam District.
The applicant departed Sri Lanka illegally, by boat, from Trincomalee on 2 May 2012 and arrived at Christmas Island on 21 May 2012. Given the mode of his arrival in Australia, he was classified as an unauthorised maritime arrival.
On 7 January 2013, the applicant applied for the relevant Protection Visa and was interviewed by departmental officers on 20 June 2013. The applicant’s claims for protection can be summarised as follows:
·He is a Sinhalese Catholic.
·After the death of his father in September 2003, he was required to support his family and began to work for various fisherman in Trincomalee.
·In February 2012 there was a sudden increase in the cost of diesel fuel, which meant that he could no longer afford to continue fishing and he was left destitute as a result.
·On 15 February 2012, the applicant was involved in a demonstration organised by other fisherman to protest the steep rise in diesel fuel prices by the government.
·The applicant was prominent in these demonstrations and as a result came to the notice of the Sri Lankan Army and police, who had been instructed to disperse the demonstrators.
·In the resulting confrontation, army and police injured three protesters and killed one, when they fired shots into the crowd.
·The applicant claimed that following the demonstration he learnt that the police were looking for him because he had been in the front row of the demonstrators.
·As a result, he left Trincomalee and went into hiding.
·In these circumstances, he asked a friend to find him a boat on which he could resume fishing. He went away fishing for a period of approximately one month.
·Whilst he was away, police came to his home to look for him. He went back into hiding.
·A man named Doloman told him about a trip to Australia. As the applicant felt his life was in danger, in Sri Lanka, he decided to leave.
·On 2 May 2012, the applicant boarded a boat with Doloman. However, the applicant was under the impression that this was a fishing trip only.
·Whilst this boat was out to sea, it was joined by another vessel, which held Tamil asylum seekers.
·It was only when the Tamils boarded his boat that the applicant realised that it was bound for Australia.
·The applicant claims that he will be beaten, tortured and/or killed by the Sri Lankan police for protesting against the government.
·He also fears suffering harm because he was forced to transport the Tamil asylum seekers to Australia.
I have not been provided with a transcript of the PV interview. It is referred to in the Delegate’s reasons for decision. The specific portion of the Delegate’s decision dealing with the applicant’s degree of involvement in the 15 February 2012 protest is as follows:
I discussed the applicant's claim that he was in the front row of the demonstrations during the PV interview. He claims that the police and the army people saw him and he was fighting with them. I asked the applicant what the government were doing to people that attended the demonstrations that day. He stated that the authorities were telling them to stop protesting and then they shot at them. I asked him what had happened to make him think that he needed to leave Chilaw for Trincomalee. He replied that he went for another reason – because he thought he could get a job. Country information reports around 4,000 people attended these demonstrations and the military and police presence was there for crowd control as opposed to monitoring anti-government sentiment. I do not find the applicant's claims that he was identified by the authorities because he was in the front row of an estimated 4,000 strong crowd to be plausible. I do not accept that authorities attempting to manage a crowd of thousands would be able to identify and locate a person within a day based on a seeing their face in the front row of a demonstration.[5]
This passage is provided verbatim because of the reliance placed on it in the application for judicial review prepared by the applicant’s former legal adviser.
[5] See Court Book at page 110.
The Ministerial Delegate did not accept that the applicant had gone into hiding because the police were looking for him or that he was unaware that the boat he boarded with Doloman was going to Australia. In these circumstances, the Delegate refused the application for protection on 23 September 2013.
The applicant sought a review of this decision in the AAT, which application was dismissed by the Refugee Review Tribunal (as it then was) on 26 June 2015.[6] This decision was subject to judicial review in the Federal Circuit Court. At this stage, the Minister accepted that the relevant decision was vitiated by jurisdictional error and the case was returned to the AAT for re-consideration.
[6] See Court Book at page 197.
In these circumstances, on 10 April 2019, the applicant was invited to appear before a re-constituted tribunal to present evidence and make submissions in support of his claims for protection. The date for the relevant hearing was initially 25 June 2019 but was re-scheduled to 4 October 2019.
The applicant was represented prior to his hearing and provided a written submission in support of his claims to be owed Australia’s protection. His claims for protection can be summarised as follows:
·He had departed Sri Lanka illegally by boat. As such he would be perceived to be part of the crew of such a vessel and would be liable to imprisonment if returned to Sri Lanka.
·He would suffer harm if returned to Sri Lanka because of his participation in the fishermen’s protest against increasing fuel prices, which took place in February 2012, as from his participation it would be imputed to him that he held anti-government opinions.
The applicant attended the hearing of 4 October 2019 with his advisor and was assisted to give evidence by a Sinhalese interpreter. On 5 November 2019, the Tribunal affirmed the earlier decision of the Delegate not to grant the applicant a protection visa. I have not been provided with a transcript of the evidence before the AAT.
THE DECISION OF THE AAT
The Tribunal had access to the statutory declaration prepared by the applicant, when he applied for protection in December of 2012. This centred on his claim of being involved in the 15 February 2012 demonstration regarding petrol prices, which escalated to involve police shooting on the crowd and his personal identification by police in that demonstration.
The specific portion of this statutory declaration reads as follows:
On or about 15 February 2012 I attended a protest organised by fisherman in protest of the rise of diesel prices on Colombo Puttalam Main Road, near the clock tower in Chilaw town, Puttalam District. There was a big road block. I was in the front row of the protest.
The Sri Lankan police came and hit protesters with batons and threw tear gas into the crowd. When the protesters did not disperse the Sri Lankan Army ("SLA") shot into the crowd. I ran away home however, as I was in the front row I was identified by the police. The SLA hit four protesters: three were badly injured and one died.
The following day I heard from other villagers the police were coming to my home to look for me. I immediately left for Maha Wewa, North Western Province. From there I caught a bus and went to Trincomalee, Eastern Province.[7]
[7] See Court Book at page 61.
As will be detailed, in due course, it is asserted by the applicant that the Tribunal has misconstrued this aspect of the applicant’s claims and, in so doing has made a credit finding which is legally unreasonable to such a degree that it vitiates the relevant decision.
Given that the hearing of the AAT was occurring almost seven years after the events described in the statutory declaration, the Tribunal invited the applicant to provide any new submissions or evidence to support his claim and questioned him about the matters already asserted.
In respect of the demonstration itself, the applicant indicated he did not know who organised it. He was questioned about why he thought the police were looking for him and could identify him. He indicated that this was because his home was near the police station. This information had not been disclosed earlier.
The Tribunal also questioned the applicant about his assertion that he had been unaware, when onboard the boat with Doloman, allegedly for a fishing trip, that it would meet with a larger vessel which had been prepared to transport Tamil asylum seekers to Australia. The Tribunal put to the applicant that this seemed very unusual.
During the hearing, the applicant submitted written evidence from his medical practitioner which indicated that he was suffering for gastroesophageal reflux and long-term depression and anxiety.
The Tribunal also had access to country information, which confirmed that petrol prices had dramatically increased in 2012, affecting the livelihood of fisherman leading to protests in the northwest of Sri Lanka, in one of which a person had been shot and killed.
In these circumstances, the findings of the Tribunal can be summarised as follows:
·It was accepted that the applicant had taken part in a protest against fuel price increases in February 2012.
·However, it found his evidence regarding how he came to the adverse notice of the police during the demonstration to be vague, lacking in detail and inconsistent.
·It found him to be an ordinary fisherman who participated in the protest with thousand of others.
·He was not an organiser or leader of the protest and, as such, was of no interest to the Sri Lankan authorities.
·As such, on the basis of this profile and country information available to it, the Tribunal did not accept that there was a real chance the applicant would suffer significant harm, from relevant authorities, if returned to Sri Lanka, on the basis that he took part, to the degree he did, in one protest, because of any actual or imputed political opinion.
·The Tribunal further found that there was no real chance the applicant would suffer serious harm, from the Sri Lankan authorities because of his status as a failed asylum seeker returned from the West.
·The Tribunal found the applicant’s evidence regarding the circumstances surrounding his departure from Sri Lanka to be lacking in credibility and did not accept his evidence that he was a crew member on a boat smuggling people to Australia.
·Given all of the applicant’s circumstances, the Tribunal doubted that he would be prosecuted as an organiser or person significantly involved in the illegal trafficking of Tamil asylum seekers. Rather, the Tribunal found the applicant to be an ordinary passenger on the vessel.
·Although the Tribunal accepted that the applicant had departed Sri Lanka illegally and would be questioned if returned there and possibly detained, country information indicated that he would be required to pay a fine for so doing.
·The Tribunal accepted that the applicant had been diagnosed as suffering from a number of medical conditions, which required on-going treatment. However, although not to the same standard as in Australia, it was considered that the applicant would receive appropriate treatment from the Sri Lankan public health service.
For these reasons the AAT did not accept the applicant’s claims for protection pursuant to either section 36(2)(a) or (aa) of the Act. As indicated above, it has been asserted on the applicant’s behalf, that the Tribunal fell into jurisdictional error when it characterised his evidence, in regard to his involvement in the 15 February 2012 fisherman’s demonstration as lacking in credibility. The relevant portion of the decision is in the following terms:
The Tribunal finds, however, the applicant's evidence that he came to the attention of the authorities vague, lacking in detail and inconsistent. According to his statement of claim the applicant declared he came to the attention of the authorities because he was in the front row of the protest. According to the delegate's decision, which was provided to the Tribunal, the applicant said during his protection interview that he was fighting with a man during the protest and that's how he came to the attention of the authorities. At the hearing the applicant confirmed he did not take part in any altercation with the police and claims that the police were able to recognise him because his home was near the police station. He conceded that he did not provide this information in his claim form. (Emphasis added)[8]
[8] See Court Book at page 289 [58].
As can be seen by comparing the extract from the Delegate’ decision (quoted at paragraph 7 supra) and the applicant’s own statutory declaration (quoted at paragraph 14 hereof) the applicant has consistently asserted that he was identified because he was in the front row of the demonstration not that he was fighting with a man. As a consequence of the italicised sentence above, he asserts that the Tribunal has misrepresented his evidence thus leading to legal error.
LEGAL CONSIDERATIONS RELEVANT TO THE GRANT OF PROTECTION VISAS
The AAT summarised the legislative criteria for the grant of a Protection Visa pursuant to the Act. In general terms, the following matters are relevant to any decision in respect of a migration decision concerning an application for protection.
Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
In respect of an application for a Protection Visa, the criteria required to be satisfied are set out in the Act and in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy one of the primary criteria contained in either section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and is therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
[I]n the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·be subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
The expression serious harm is defined in section 5J(5) as follows:
·a threat to the person's life or liberty;
·significant physical harassment of the person;
·significant physical ill-treatment of the person;
·significant economic hardship that threatens the person's capacity to subsist;
·denial of access to basic services, where the denial threatens the person's capacity to subsist;
·denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
These sections reflect the definition appearing in the Refugees Convention,[9] to which Australia is a signatory and which provides that a refugee is a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
[9] Hereinafter referred to as “the Convention”.
The High Court has established that this definition has both subjective and objective elements. As a consequence, the question to be asked by the relevant decision-maker, regarding an application for protection being firstly does the applicant concerned subjectively fear persecution and secondly is that fear objectively well-founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned, if he or she is returned to the country, where persecution is posited. Necessarily such considerations are predictive in nature. They are often encapsulated under the rubric of the real chance test.[10]
[10] See S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 498–499 [72]–[73].
Accordingly, in determining whether there is such a real chance of a Protection Visa applicant suffering serious harm, in his or her country of origin, a decision maker is entitled to refer to information germane to the country of origin, of the applicant concerned, regarding the situation likely to confront either the actual applicant or others who bear his or her attributes, if returned to that country.
Essentially, the question to be addressed is what is the objective likelihood that the claimant in question will suffer persecution, if returned to his or her country of origin? Such an inquiry is likely to involve a survey of information of the situation likely to confront a person, with the attributes of the claimant concerned, in the applicable country. Such objective information is invariably referred to as country information.
Pursuant to section 36(2)(aa) of the Act, a person is entitled to a Protection Visa, if there are substantial grounds for believing that, if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering significant harm if returned to a particular country.
Section 36(2A) of the Act defines significant harm. It includes the relevant applicant for protection suffering all or any of the following circumstances:
·being arbitrarily deprived of his or her life;
·being subject to the death penalty;
·being subject to torture;
·being subjected to cruel or inhumane treatment or punishment; or
·being subject to degrading treatment or punishment.
It is not suggested that there has been any misapplication of these principles to the current matter. Rather, as I understand it, it has been asserted that the Tribunal reached an erroneous factual conclusion of such moment, which caused it to correctly apply the law to the circumstances of the applicant.
THE CURRENT APPLICATION TO THE COURT
The current application for judicial review was filed on 11 December 2019, within the 35-day time frame prescribed by section 477(1) of the Act. The application was professionally prepared by the applicant’s previous firm of solicitors. The application was supported by a simple affidavit to which was attached the relevant decision of the AAT.
Procedural orders were made, on 26 February 2020, fixing the matter for hearing on an unspecified date and directing the filing of submissions in anticipation of this date, when announced. The applicant has not filed any submissions.
On 13 January 2021, the applicant’s then solicitors advised him of their intention to cease acting on his behalf, which they formally did on 29 January 2021. The applicant has not appointed a new solicitor to act on his behalf.
The applicant appeared before the court, via telephone, on 21 June 2023, when an order was made reiterating the direction regarding the filing of written submissions. The matter was fixed for hearing on 9 November 2023.
The applicant appeared at court for the hearing of his application. A Sinhalese interpreter had been arranged. I asked the applicant if he had anything he wished to say to the court. He indicated in the negative. Clearly, as a consequence of his background, lack of English language skills and any legal training, he is at a significant level of disadvantage in advocating his case. To all intents and purposes, it is beyond him to argue the professionally drawn grounds of review.
At the same time, his application has been on foot for a period approaching four years and he personally has been in Australia for over 11 years. In my view, it is not in the overall interests of the administration of justice that the case be delayed further, particularly given, for the reasons which follow, I can find no error in the relevant decision.
The formal grounds for review, drafted by the applicant’s former solicitor are in the following terms;
1.1.The Tribunal made findings at paragraph [58] of its reasons that the applicant's evidence about how he came to the attention of the authorities was 'vague, lacking in details and inconsistent'.
1.2.In describing how the applicant's account had been inconsistent, the Tribunal made an incorrect finding of fact, namely that the applicant said during his protection interview that "he was fighting with a man during the protest and that's how he came to the attention of the authorities".
1.3.The evidence which was in fact given by the applicant in his protection visa interview was that he had been in the front row of the protest, and that he had been arguing with the police and the government authorities.
1.4.This was corroborated in the delegate's decision of 23 September 2013, which confirmed that he claimed to be in the front row, and that he was fighting with the 'police and army people'.
1.5.The Tribunal failed to recognise that this account was in fact consistent with his prior statement, and provided additional details relevant to the applicant's claim.
1.6.The Tribunal's error in its reasoning caused it to reject the applicant's claim that he had come to the attention of the Sri Lankan authorities at paragraph [61].
1.7.The Tribunal's rejection of the applicant's evidence and its findings regarding the applicant’s credibility were illogical or irrational, and/or legally unreasonable and accordingly a jurisdictional error.
LEGAL PRINCIPLES RELATING TO JUDICIAL REVIEW OF MIGRATION DECISIONS
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[11]
[11] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
Pursuant to section 476 of the Act, the Federal Circuit & Family Court of Australia (Division 2) has the same original jurisdiction to review what are characterised as migration decisions as that conferred on the High Court. The relevant decision of the AAT is such a migration decision. This provision of the Constitution confers original jurisdiction on the High Court in proceedings in which a prerogative writ is sought against an officer of the Commonwealth.
Accordingly, the court has the authority to grant the relief sought by the applicant by way of writs of certiorari and mandamus to quash the relevant Tribunal decision and require the re-hearing of the review but only in the event an error of jurisdiction is established.
In this context, it is important to emphasise that, in undertaking judicial review, this court is unable to examine the merits of the relevant decision under review or substitute its own findings of fact for those of the original decision-maker. As such, the court must be vigilant to avoid inadvertently transforming a process of judicial review into a re-hearing on the merits.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[12]
[12] See Craig v South Australia (1995) 184 CLR 163 at 179.
The classic description of an error, which goes to the jurisdiction of an administrative body, was described in the following terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[13]
What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[14]
[13] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
[14] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82].
In Minister for Immigration & Citizenship v Li (“Li”)[15] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[15] Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [75]–[76].
Following on from Li, in Minister for Immigration & Border Protection v Singh,[16] the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
[16] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[17]
[17] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme” not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[18] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[18] Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99.
In Minister for Immigration & Citizenship v SZMDS[19] Crennan and Bell JJ said as follows
In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[19] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [130].
In respect of how a court, conducting a judicial review of a primary decision maker’s determination is to assess whether that decision is irrational or illogical. Their Honours said as follows:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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.[20]
[20] See Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [135].
Accordingly, a decision sought to be impugned may be found to contain some error or mistake of fact but the existence of such state of affairs is not sufficient of itself to justify the quashing of the resulting decision. The same result may be open to the decision-maker notwithstanding the error in question or the error demonstrated may have no material significance in respect of the decision reached.
In order to be successful in their application for review, as indicated above, it will be necessary for the applicant to demonstrate an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own discretion for that of the Tribunal or embark upon its own process of merits reviewing, which involves it making findings of fact in substitution for those of the Tribunal.
In Minister for Immigration & Ethnic Affairs vWu Shan Liang the High Court warned that a court, such as this one, called upon to review a decision regarding refugee status:
[M]ust beware of turning a review of the decisions of the decision-maker upon proper principles into a reconsideration of the merits of the decision.[21]
[21] Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 at 272.
As such, this court is required to give the reasons of the Tribunal a beneficial construction, which does not involve a degree of over-zealous scrutiny, which searches out error. In the present matter, I must be cautious in how I approach inchoate claims that the relevant decision is wrong or unfair or that the applicant was not, in some imprecise manner, accorded procedural fairness.
It has been recognised by the High Court that a court, such as this one, which has a supervisory jurisdiction in respect of administrative decision-makers, must guard against a too ready assessment that a decision of such a decision-maker is one to be characterised as one being vitiated by an absence of evidence, illogicality or unreasonableness.
Afterall as Gleeson CJ indicted in Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002[22] to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. Such disagreement cannot, of itself, provide a ground for judicial review. Rather, some specific form of jurisdictional error must be established.
[22] Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 at 61.
In this context, as was pointed out by the High Court in Minister for Immigration & Citizenship v SZJSS,[23] the court, in conducting judicial review must be vigilant against attempts to re-evaluate evidence or to otherwise slide into impermissible merit review. Or, as was pithily stated in MZARJ v Ministers for Immigration & Border Protection[24] the court must be careful not to shoehorn arguments about the merits of the Tribunal’s conclusions into categories of reviewable error such as “no evidence” or “illogicality” or “unreasonableness and so slide into impermissible merits review.
[23] Minister for Immigration & Citizenship v SZJSS (2010) 85 ALJR 306 at [23].
[24] MZARJ v Minister for Immigration & Border Protection (2016) FCA 1303 at [26] – [28].
As indicated above, the degree of illogicality or unreasonableness sufficient to render an administrative decision liable to vitiation must be extreme not incidental in nature, it also must be influential in terms of the outcome. I also concede that, in terms of the second limb in Singh, it is conceivable that a mistake of fact is of such moment as to colour the overall outcome of the case with the taint of caprice or arbitrariness. However, again care must be taken in this regard.
The onus remains on the applicant to establish that there has been an error of jurisdiction in respect of the Tribunal’s decision. It is not sufficient for him to assert it is wrong or there is some mistake of fact and then expect this court to search out for some jurisdictional consideration which justifies its vitiation and, as in the current matter, shoehorn in a complaint about an erroneous finding of fact into the inapposite and narrow shoe of illogicality, irrationality or unreasonableness.
DISCUSSION
The finding of fact which the applicant in his application seeks to characterise as being legally unreasonable, on the basis of a lack of logic, is that his evidence as to how he came to the notice of the authorities, by reason of his attendance at the 15 February 2012 fishermen’s demonstration, was not credible because it was vague and lacked detail.
In my view, a fair reading of all the material available to the Tribunal demonstrates that, notwithstanding the error regarding whether the applicant had been observed fighting or otherwise on the day in question, there was ample evidence to rationally support its finding that the applicant’s claim of having a significant profile, with the Sri Lankan authorities because of his involvement in this protest, was not credible or believable and so could not found a claim for Australia’s protection.
The various factual strands which support the adverse credibility finding, particularly in the context of a lack of consistency in respect of the applicant’s level of involvement in the protest, can be summarised as follows:
·In his statutory declaration, the applicant said he was identified by police because he was in the front row. He gave no further details.
·At a later stage, to the Delegate, he again claimed to be readily identifiable by police because he was in the front row of the demonstration. The Delegate found this to be implausible because of the size of the crowd on the day in question and the implausibility that the applicant would be able to be identified as one face amongst many thousands.
·Significantly, when questioned by the Tribunal as to why he would be so readily identifiable, the applicant indicated that it was because his home was near to the police station and this proximity was what caused him to be identified. The Tribunal found this to be inconsistent with his initial account.
In addition, it is to be noted that the AAT questioned the applicant about the incident given its crucial degree of nexus to his claims for protection. In this context, it found, as a consequence of country information that the protest was attended by four thousand people, which the applicant himself confirmed.
On the basis of its questioning of him, the Tribunal found that the applicant was not an organiser or leader of the protest and had limited involvement in the rally. In this context, the Tribunal characterised the applicant as an ordinary Sinhalese fisherman without any political profile.
Finally, whilst country information confirmed that there had been one fatality as a result of police shots having been fired, there were no reports that the authorities had attempted to intimidate protestors or potential witnesses of the incident, which further emphasised the improbability of the applicant having any form of profile with relevant authorities because of his involvement with the 2012 protest, which it also noted had occurred seven years beforehand, during which period the Sri Lankan government had changed.[25]
[25] See Court Book at page 289 [62].
In my view, a fair reading of the Tribunal’s decision is that it is as a result of a combination of these factors, which led to crucial finding that the applicant was not a person of interest because of his connection to the 2012 protest.
As a consequence, it appears incontrovertible that the error attributed to the Tribunal that it was an element of the applicant’s claim for protection that he had been identified by the authorities because he was fighting with a man played no material or logical role in it reaching its conclusion that the applicant’s evidence, in support of his claim for protection, lacked credibility.
In my view, the finding that the applicant did not come to the notice of authorities because it was a large demonstration, which the applicant played no part in organising and, in any event, the authorities had not sought to target anyone following it, is logical and rational in it terms.
In the context of judicial review of a primary decision maker’s assessment of credit, the reviewing court must be particularly careful not to convert its task inadvertently into one of merits review. Although it is open to a reviewing court to accept that a fact finder’s assessment of credit is illogical, it should only do so very cautiously.
Relevant Federal Court authority also makes it clear that a finding of adverse credibility, made by a decision maker, in respect of an applicant in the context of a refugee application may, in certain circumstances, also found a finding of jurisdictional error on the basis of unreasonableness.
However, for obvious reasons and as McHugh J remarked in Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[26] findings on credibility are a function of the primary decision maker “par excellence” and in this context, care needs to be taken to avoid turning judicial review into merits review.
[26] See Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
In Minister for Immigration & Border Protection v SZUXN[27] Wigney J said as follows in respect of the issue of applying principles relating to legal unreasonableness to a primary decision maker’s finding of fact in respect of an issue of credit:
An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error… That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
[27] See Minister for Immigration & Border Protection v SZUXN [2016] FCA 516 at [56].
In all the circumstances, of this case, in my view, it cannot be said that there was no intelligible justification for the Tribunal reaching the conclusion that the applicant’s account of why he had a profile with the Sri Lankan authorities, because of his participation in the 2012 protest, was not credible. In my view, it would again represent an impermissible merits review for me to substitute my own findings as to credit for those of the Tribunal.
For these reasons, the application must be dismissed. The first respondent seeks that the applicant pay the first respondent’s costs of the proceedings. The amount allowable pursuant to the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021 is $8,371.30, the first respondent seeks less than the scale at $5,400.00. I will make an award of costs in this amount.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 29 November 2023
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