BRC16 v Minister for Home Affairs
[2019] FCCA 1835
•3 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRC16 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1835 |
| Catchwords: MIGRATION – Protection visa – as a minor, applicant departs Sri Lanka in 1990 and resides in India until 2012 – applicant travels to Australia as irregular maritime arrival – Tribunal rejects claims to fear harm by reason of imputed LTTE opinion or association or status as a Tamil – applicant pursues claims on judicial review that he fears harm as a person who departed Sri Lanka illegally and that Sri Lankan authorities may harm him so as to conceal sexual abuse of applicant’s sister in 2010 – whether Tribunal’s reasoning illogical in finding that applicant’s chances of being charged upon returning to Sri Lanka were remote – whether Tribunal failed to bring active intellectual consideration to claim that applicant faced harm by reason of his sister’s sexual abuse – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 424A, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 AYY15 vMinister for Immigration and Border Protection [2018] FCA 130 BRF038 v Republic of Nauru [2017] HCA 44 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 CDD15 v Minister for Immigration and Border Protection [2017] FCAFC 65 CQG15 vMinister for Immigration and Border Protection [2016] FCAFC 146 DAO v Minister for Immigration and Border Protection (2018) 353 ALR 641 DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91 Minister for Immigration and Border Protection v MZYTS (2013) 203 FCR 431 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZKRT [2013] FCA 317 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Singh v Minister for Home Affairs [2019] FCAFC 3 SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 |
| Applicant: | BRC16 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1422 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 11 July 2018 |
| Date of Last Submission: | 11 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 3 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Levine |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr Petrie |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The amended application filed 13 June 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1422 of 2016
| BRC16 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 13 June 2018, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 June 2016 affirming the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection Visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act).
The applicant, a Sri Lankan citizen aged 34 years, is a Christian of Tamil ethnicity who first arrived in Australia on 11 May 2012 as an irregular maritime arrival. As appeared from his visa application, the applicant left Sri Lanka when he was six years of age, first emigrating to India in 1990 and then to Australia in 2012. In the period 1990 to 2012, the applicant was in a refugee camp in Tamil Nadu, in India.
While the applicant is married with a son, his wife and child continue to live in India. Other members of his family live in Sri Lanka.
On 4 August 2012, the applicant applied for the visa. His application has been the subject of a number of administrative hearings.
The applicant’s claims for protection emerged progressively. While it is convenient to address those claims below, it is useful to appreciate that some of the claims were made after an earlier Tribunal hearing, the decision of which was quashed. Relevantly, for the purposes of this application, two of the bases on which the applicant challenges the Tribunal’s current decision were that: (1) he feared harm as a person who had departed Sri Lanka; and (2) he would be targeted as an indirect consequence of the desire of Sri Lankan authorities to silence his sister (who had left Sri Lanka in 2010) in order to conceal their abuse of her while she and other family members had been in detention in 2009-2010. The detail of the latter claim is of greater relevance for the purposes of Ground 3 of this application and is addressed in further detail below.
On 22 October 2012, a delegate of the Minister refused the applicant’s visa application. The delegate was not satisfied that the applicant had a profile that would attract a real chance of being persecuted, or that there was a real chance the applicant would face serious harm if returned to Sri Lanka. The delegate “did not consider that detention, being viewed with suspicion, or interrogation to mean the applicant will face harm” stating:
The Sri Lankan authorities are well within their rights to question people who are returning, who may have suspected links to a terrorist organisation. However, I do not believe that there is any sufficient evidence to suggest that the applicant has a profile that would attract any form of harm if he were to be returned to Sri Lanka . . .
On 29 November 2012, the applicant applied to the then Refugee Review Tribunal for review of the delegate’s decision. On 1 October 2013, the Tribunal affirmed the delegate’s decision not to grant the visa. In its statement of reasons for this decision the Tribunal noted inconsistencies respecting events relating to the applicant’s sister but accepted the possibility that his sister may have been abused:
The Tribunal also accepts that the applicant’s sister may have been taken for interrogation, during which time she was sexually abused, including raped, by the SLA. The Tribunal notes in the applicant’s adviser’s submission received on 25 March 2013, it was stated that the applicant believes his sister was subjected to such harm because it was something being inflicted on a lot of Tamil women held in the camps at this time. The Tribunal accepts the applicant’s claims regarding his sister’s experience in the camp is consistent with country information. . .
The applicant applied for judicial review of that decision and on 14 May 2014, orders were made by consent quashing the decision and remitting the matter for reconsideration according to law.[1]
[1]The parties agreed that the Tribunal had breached the obligations under s 424A of the Act by relying upon information given by the applicant during his interview with a delegate that had not been put to the applicant.
On 19 August 2014, the applicant was invited to appear before the Tribunal on 25 September 2014 to give evidence and present arguments relating to the issues arising from the decision under review. On 19 September 2014, a newly constituted Tribunal received a request that the hearing be postponed. The Tribunal agreed to the request, and on 10 October 2014 the hearing was rescheduled to 14 November 2014. Two hearings were then held in the following circumstances:
a)on 14 November 2014, the applicant appeared before the Tribunal with his lawyer;
b)on 15 April 2016, the applicant was informed that the Tribunal had considered the material before it but was unable to make a decision on that information alone.[2] The applicant was invited to attend a further hearing before the Tribunal on 5 May 2016;
c)on 28 April 2016, the applicant’s lawyers provided a further submission to the Tribunal;
d)on 5 May 2016, the applicant appeared before the Tribunal with his lawyer and with the assistance of a Tamil interpreter;
e)on 6 May 2016, the Tribunal sent the applicant’s lawyer further country information for consideration; and
f)on 19 May 2016, the applicant’s lawyer sent the Tribunal a further submission addressing the applicant’s claim that his sister had joined the Liberation Tigers of Tamil Eelam (LTTE), and attached reports of torture and sexual abuse by Sri Lankan security forces.[3]
[2]It also appeared that the Tribunal needed to be reconstituted by reason that the appointment of a Tribunal member had expired, and that the current presiding member sought a further hearing to enable the applicant to give evidence and present arguments.
[3] At [6]-[10].
On 6 June 2016, the Tribunal affirmed the decision to refuse to grant the applicant a Protection visa, providing a statement of reasons for its decision (Reasons).
Tribunal’s decision
The Tribunal examined the applicant’s claims in detail by reference to: (a) the applicant’s first statutory declaration; (b) the delegate’s decision record; (c) the evidence provided to the first and second Tribunal hearings; (d) the applicant’s statutory declaration made on 6 November 2014; and (e) the evidence before the Tribunal including the submissions which were made on the applicant’s behalf: Reasons, [21]-[29].
By way of overview, the Tribunal considered the applicant’s evidence in relation to his time as a refugee in India, including: his father’s suspected involvement with LTTE; the shooting of his uncle; his wife and son’s continued residence in India; his regular contact with his parents; his sister’s recruitment to the LTTE in 2007; his family’s detention in a camp at the war’s end and their release after 12 months; his sister’s escape to a foreign country; and being told by his mother that his sister had been raped and is brother all injected with an unknown substance by the authorities: Reasons, [30]-[53].
The Tribunal considered the evidence given by the applicant in relation to his sister: Reasons, [34]-[53]. The Tribunal examined the sister’s recruitment to LTTE and her subsequent work for it. The applicant’s evidence relating to his sister was based on information that had been given to him by his mother. The applicant said his sister had joined the LTTE in about 2005. The applicant gave evidence that his sister had been sexually assaulted and raped when she was taken for inquiries whilst interred at the Chedikulam IDP camp at the end of the war. The applicant said that his family was released from the camp after about one year’s detention; that is, in 2010. The applicant also said that shortly after his family’s release, his sister escaped to a foreign country; but when asked again, the applicant stated that she escaped a few days before he had come to Australia on 11 May 2012. The applicant’s parents had assisted his sister’s departure to a foreign country by arranging for a false passport to be provided to her. When the applicant’s sister left Sri Lanka, members of the Sri Lankan army (SLA) came to his parent’s home on numerous occasions enquiring as to her whereabouts. The applicant said that his sister had never told him directly that she worked for the LTTE, and that he had obtained this information from his mother. The applicant gave evidence that the officials enquired as to the sister’s whereabouts at two to three monthly intervals.
The applicant gave evidence that officials had taken his father and beaten and interrogated him. He gave evidence claiming that his mother had been interrogated and that his brother had been taken away, beaten and injected with an unknown substance which had worsened his existing mental disability.
The Tribunal put various inconsistencies in the evidence to the applicant and sought clarification on those issues: Reasons, [54]-[62].
The Tribunal put to the applicant that: (1) by 2016, it had been seven years since the war ended; (2) his sister was not involved in fighting for the LTTE and appeared to have a low profile; (3) its concerns as to why his sister or his family would now continue to be of interest to Sri Lankan authorities, long after the conclusion of hostilities: Reasons, [57]-[59].
The applicant told the Tribunal that he feared the authorities and groups like the Eelam People’s Democratic Party (EPDP) were coming to his house and making enquiries because it was in a movement-controlled area: Reasons, [60].
The Tribunal discussed country information with the applicant and raised its concerns in relation to the applicant’s credibility including, in particular, why he had failed to raise his sister’s LTTE membership and the ongoing enquiries and fear of harm he claimed the authorities subjected his family to. The Tribunal put the following further matters to the applicant:
a)country information that will returnees or failed asylum seekers did not appear to be targeted by authorities if they did not have an adverse profile: Reasons, [63].
b)as the applicant had left Sri Lanka at a young age and had done so in 1990, it was doubtful he would be charged with illegal departure and, even if he was charged, the most likely scenario would be the imposition of a fine following a very short period of detention in remand: Reasons [64];
c)on current country information, even family members of high profile LTTE members were only monitored: Reasons, [65];
d)the Tribunal questioned whether the applicant’s sister could even be described as an LTTE member given her profile and doubted whether she would be of interest to Sri Lankan authorities: Reasons, [65]; and
e)the Tribunal provided the applicant with a recent DFAT report (which was the subject of post hearing submissions): Reasons, [66].
Concerning pre-2009 events, the Tribunal considered that the applicant had given plausible evidence as to the reasons why his family had left Sri Lanka for India in 1990. It also accepted as plausible the applicant’s evidence that his father had been beaten or detained and tortured in 1990, under suspicion of LTTE association and that the applicant’s uncle had been killed in 1990. It accepted that the applicant’s parents and siblings returned to Sri Lanka in 2004, and that the applicant had remained in India with his wife and child and not returned to Sri Lanka.[4]
[4]Reasons at [80] erroneously refer to the applicant remaining in Sri Lanka, however, reading the Reasons as a whole, and in particular the relevant sentence, it is clear the Tribunal intended to state that the applicant had remained in India.
Consideration of claims and evidence
The Tribunal’s findings and reasoning were arranged as follows:
a)the applicant’s nationality, difficulties of proof and questions of credibility: Reasons, [68]-[73];
b)issues relating to the interpreter: Reasons, [44]-[45], [74]-[76];
c)events prior to 2009: Reasons, [77]-[82];
d)the applicant’s sister and the LTTE: Reasons, [83]-[87];
e)detention in 2009 and subsequent harassment and harm of the applicant’s family: Reasons, [88]-[106];
f)future harm as a result of Tamil identity and imputed LTTE association: Reasons, [107]-[119];
g)failed asylum seeker: Reasons, [120]-[125];
h)illegal departure: Reasons, [126]-[128]; and
i)overall conclusions: Reasons, [129]-[133].
In my view, the Reasons were comprehensive.
The Tribunal traced the applicant’s version of events relating to the treatment of his father since returning to Sri Lanka in 2004 as given at the three hearings, and considered his evidence to be contradictory and unreliable. It did not accept that the applicant’s father had been taken for questioning, detained or beaten after returning to Sri Lanka or when the applicant’s family were placed in an IDP camp in 2009: Reasons [81]-[82].
Concerning the applicant’s sister, the Tribunal characterised the claim that she had joined the LTTE as being of concern; recognising that it had been elevated to the point of being ‘central to the applicant’s claims’: Reasons, [83]. The Tribunal accepted that the applicant’s entry interview on 21 June 2012 made reference to his sister having been recruited into the LTTE, but recorded its concern about why such significant claims had been omitted from his original statement and later evidence ‘that he did not consider this information significant’ at the time of that statement: Reasons, [83].
The Tribunal accepted as probable that the applicant’s sister had been compulsorily recruited to the LTTE in 2007. However, it expressed its concern in relation to the evolution of the applicant’s evidence as to his sister’s precise role with the LTTE. In expressing this concern, the Tribunal referred to the applicant’s instructions as reflected in submissions from the applicant’s migration agent dated 25 March 2013, which stated that the applicant was unaware of the details of his sister’s role with the LTTE. The Tribunal referred to the applicant’s evidence in the first two hearings that his sister taught had the Tamil language to young children in an LTTE-controlled area, but in the third hearing, the applicant claimed for the first time his sister taught the Tamil language to children of LTTE members: Reasons, [84]-[86]. The Tribunal found that the applicant’s sister’s work for the LTTE was limited to teaching young children the Tamil language: Reasons, [87].
Based upon the applicant’s claims and country information, the Tribunal accepted that the applicant’s sister had suffered sexual assault while detained at the IDP camp: Reasons, [89].
In relation to post-2009 events, the Tribunal accepted it was plausible that the applicant’s family had been detained in the Chedikulam IDP camp for approximately one year from June 2009, during which period the applicant’s father may have been interrogated and assaulted, and further that his mother interrogated: Reasons, [88].
However, the Tribunal had significant concerns regarding the applicant’s evidence following the family’s release from the Chedikulam IDP camp and the alleged ongoing interest in his sister and other family members: Reasons, [90].
The Tribunal expressed its concerns about the applicant’s claim that the authorities had shown a prolonged level of interest in the his sister or family, particularly given his sister’s limited LTTE profile as a teacher. The Tribunal did not accept that the authorities would have taken an adverse interest in her, or have continually enquired of her whereabouts. Nor did it accept that members of her family were interrogated at two-three monthly intervals: Reasons, [92]. The Tribunal did not accept that the applicant’s sister’s profile would be such that their father would have been further interrogated. It considered DFAT reports indicating that even family members of high level LTTE members were monitored: Reasons, [93]. The Tribunal also did not accept that the applicant’s sister’s work as a teacher would be considered such as to merit attention by the authorities. It rejected any link between the applicant’s uncle’s death in 1990 that would support a conclusion as to the importance of the applicant’s sister’s role: Reasons, [94].
Critically to the present application, on the evidence provided, the Tribunal did not accept that a suggested motive of the Sri Lankan authorities to silence the applicant’s sister about the sexual abuse she had suffered in detention was sufficient to warrant the prolonged adverse interest in his sister and family since 2010 as claimed: Reasons, [94].
The Tribunal found the applicant’s evidence concerning the treatment of his younger brother to be inconsistent, confused and unclear: Reasons [95]-[98].
The Tribunal acknowledged that, at the time of the delegate’s interview, the applicant had mentioned claims of continued enquiries by Sri Lankan authorities as to his sister’s whereabouts and the targeting of his family, but considered that the applicant’s failure to mention information that now formed the central basis for his claimed fear of harm in his original statement to be of concern; particularly given that this statement had been made only a short time prior to the Departmental interview. The Tribunal was not satisfied by the applicant’s explanation for the omission to address the claim of ongoing targeting of his family in circumstances where the statement had clearly addressed the claim to sexual assault and possible rape of his sister: Reasons, [99]-[103].
The Tribunal did not accept that: (1) within days after the applicant’s family’s release from Chedikulam IDP camp, informants from his family’s village had told Sri Lankan authorities of his sister’s LTTE connections; (2) those authorities had thereafter visited the family home searching for the applicant’s sister; and (3) those authorities regularly visited the applicant’s family’s home over the following six years to search for or enquire about his sister: Reasons, [104]-[105]. The Tribunal rejected the applicant’s claims concerning treatment by Sri Lankan authorities of his brother: Reasons, [106].
Future harm
The Tribunal considered that the applicant’s submissions, country information and other documentary evidence related to the risk of future harm: Reasons, [107]-[119]. It found that: (1) merely being of Tamil origin was not sufficient to give rise to an imputed pro-LTTE political opinion or a real chance of serious or significant harm: Reasons, [108]; (2) monitoring and harassment of Tamils had generally eased, albeit that some level of discrimination towards them continued: Reasons, [109]; (3) the applicant did not face a real chance of serious or significant harm by reason of his Tamil ethnicity or his being a young Tamil male from a former LTTE-stronghold: Reasons, [110]; and (4) it did not accept that the Sri Lankan authorities targeted younger generations of Tamils: Reasons, [111].
The Tribunal expressly acknowledged the submission of his lawyers that the applicant was “not simply a Tamil male from the North but that several other aspects of the applicant’s profile will put him at risk”: Reasons, [112]. The Tribunal did not accept there was a real chance of risk that the applicant would face either serious or significant harm from Sri Lankan authorities by reason of “any ongoing interest in his sister’s LTTE association”, stating at [113]:
The Tribunal does not accept that the country information provided by the applicant’s representatives including the most recent provision of a report regarding 20 survivors of torture and sexual violence in 2015 indicates that the chance of serious harm or risk of significant harm to the applicant as a result of his sister’s limited profile as a children’s teacher recruited by the LTTE, including when considered with other aspects of his profile, is anything other than remote. (Emphasis added)
Citing available country information, the Tribunal also did not accept that the applicant’s residence in an Indian refugee camp from the age of six, or his illegal departure, would increase the risk of him being exposed to a chance of serious harm or significant harm. The Tribunal was not persuaded to alter its assessment of the applicant’s exposure to possible risk of serious or significant harm by reason of a 2016 International Truth & Justice Project report: Reasons, [115]. The Tribunal did not accept a variety of other factors as supporting a conclusion that the applicant would face a real risk of persecution or a serious risk of suffering significant harm: Reasons, [116]-[119].
Failed Asylum Seeker
The Tribunal did not accept the applicant would face a real chance or serious risk of significant harm as a result of being a failed asylum seeker: Reasons, [120]-[125].
Illegal departure
The Tribunal considered, and concluded as being remote, the prospect that the applicant would be charged with offences for illegal departure under s 45 of the Immigrants and Emigrants Act: Reasons, [126]-[128]. I address this matter further in the context of Grounds 1-2 below.
Overall conclusions on future risk of harm
The Tribunal considered, separately and cumulatively, the applicant’s claims and concluded that he did not face a real chance of serious harm from Sri Lankan authorities or others by reason of: (a) his Tamil ethnicity; (b) his profile as a young Tamil man from a former LTTE controlled stronghold; (c) any imputed pro-LTTE support or sympathies or imputed opposition to the government including resulting from his sister’s LTTE profile; (d) his residence in India; (e) his being a failed asylum seeker; or (f) for any other Convention ground: Reasons, [129]-[133].
In my view, the Tribunal undertook a detailed and comprehensive analysis of the evidence and submissions that were made, including its consideration of the available country information and other documentary evidence which was submitted on the merits review.
Procedural history
On 5 July 2016, the applicant filed an application for judicial review of the Tribunal’s decision. An affidavit affirmed by the applicant’s solicitor on that date annexed a copy of the Tribunal’s Reasons.
By a Response filed on 13 July 2016, the Minister contended that the application did not establish any jurisdictional error and sought that the application be dismissed with costs.
Consideration
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error.[5] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[6]
[5] Act, s 476.
[6] Act, s 476(2); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
On 13 June 2018, the Applicant filed an amended application, abandoning his original ground and adopting three new grounds which, in summary, contended that the Tribunal’s decision: (1) was tainted by illogicality in that it found all illegal returnees would be charged, yet found that the applicant’s chance of being charged was remote; (2) demonstrated that it had misunderstood the country information bearing upon the risk of his being charged with an offence; and (3) entailed a failure to deal with an integer of his claim; namely, the risk he would be targeted and at risk as a result of the desire of Sri Lankan authorities to silence his sister for the abuse that she had suffered while in detention in 2009-2010 with other members of his family.
Grounds 1 & 2 - illogical and/or irrational finding
The applicant presented his submissions on both Grounds 1 and 2 as one.
Ground 1 of the amended application reads:
The Tribunal’s finding that the Applicant faced a remote risk of being charged with an offence in Sri Lanka by reason of leaving Sri Lanka was infected with illogicality and/or irrationality.
Particulars
The Applicant claimed to fear harm in Sri Lanka by reason of being charged with an offence based on illegal departure and, as a consequence, being detained and tortured in detention.
The Tribunal found at [127] of the decision record that “since November 2012, all returnees who left Sri Lanka have been arrested by the CID after being processed into Sri Lanka and charged with an offence under the Immigrants and Emigrants Act and bailed.”
Tribunal found at [128] of the decision record that “given that the Applicant was only six years old when he left Sri Lanka, the Tribunal finds that he would be charged with offences under s 45 of the Immigrants and Emigrants Act is remote”.
The finding at [128] of the decision record was illogical or irrational in light of the finding at [127] that “all returnees who left Sri Lanka illegally” are charged with illegal departure offences upon return to Sri Lanka.
Ground 2 of the amended application reads:
Further, and in the alternative, the Tribunal misunderstood the country information in relation to the risk of the Applicant being charged with an offence in Sri Lanka by reason of leaving Sri Lanka illegally.
Particulars
The Tribunal based its finding at [127] of the decision record that “all returnees who left Sri Lanka illegally” are charged with illegal departure offences upon return to Sri Lanka on country information reports cited at footnotes 17 and 18 of the decision record.
Tribunal found at [128] of the decision record that “given that the applicant was only six years old when he left Sri Lanka, the Tribunal finds that the chance or risk that he would be charged with offences under s 45 of the Immigrants and Emigrants Act is remote”.
The finding at [128] of the decision misunderstood the country information cited at footnotes 17 and 18 in support of the finding that “all returnees who left Sri Lanka illegally” are charged with illegal departure offences upon return to Sri Lanka.
Each of Grounds 1 and 2 referred to the Reasons at [127]-[128] and the footnotes to those paragraphs. The Tribunal reasoned as follows:
Illegal departure from Sri Lanka is an offence under s 45 of the Immigrants and Emigrants Act carrying a penalty of a term of imprisonment of up to five years or a fine of up to 200,000 rupees. Since November 2012, all returnees who left Sri Lanka illegally have been arrested by the CID after being processed back into Sri Lanka and charged with an offence under the Immigrants and Emigrants Act and bailed. The most recent DFAT report notes that the same processes that apply to persons who departed Sri Lanka illegally applies to returnees who have travelled illegally to India and then onwards to a third country.
However, s 7.5 of the Chapter IV of the Sri Lankan Penal Code (‘General Exceptions’) states that an act that is done by a child under eight years of age is not an offence. Given that the applicant was only six years old when he left Sri Lanka, the tribunal finds that the chance or risk that he would be charged with offences under s 45 of the Immigrants and Emigrants Act is remote
The footnotes to the first sentence of the Reasons at [128], referred to DFAT report 1478 and a DFAT Country Report, Sri Lanka.
The applicant contended that the Tribunal’s findings in relation to the claim concerning risk of harm on the basis of illegal departure were infected by illogicality or irrationality.[7] The attack on the reasoning was, as stated, that the Tribunal had found that: (1) since 2012, ‘all returnees’ who left Sri Lanka illegally had been arrested by the CID and were ‘charged’ with an offence under the Immigrants and Emigrants Act; (2) the ‘same processes’ were applied to returnees who had travelled illegally to India and then to a third country (i.e., persons like the applicant); and (3) however, concluded that the risk of the applicant being charged was ‘remote’.
[7]Relying on the principles stated in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [148]; ARG v Minister for Immigration and Border Protection [2016] FCAFC 1174, [47].
It was submitted the adoption of a path of reasoning which at one and the same time accepted that all returnees would be charged with an offence, yet found that the risk of the applicant being so charged was remote was logically irreconcilable.
Attention was drawn to the finding at [128], where the Tribunal, relying on country information, identified an exception created by the Penal Code whereby an act done by a person under the age of eight years was not an offence. The Tribunal had reasoned that, because the applicant had been aged six years when he left Sri Lanka, he had a defence available to him under that Penal Code. The applicant submitted that the Tribunal had wrongly conflated the risk to the applicant of being charged with an offence with the risk of his being convicted. It was further submitted that the question of whether the applicant was under the age of criminal responsibility when he departed Sri Lanka with his family was a question of fact that would most likely be for final determination by the Sri Lankan courts, and was therefore a matter that might be taken into account in assessing the likelihood of a conviction for illegal departure, as distinct from the likelihood of a charge being laid against him. Whether the applicant may have been underage when he had departed Sri Lanka was said to have no logical bearing on the risk of him being charged upon his return to Sri Lanka as an adult.
It was further submitted, and I accept, that jurisdictional error grounded upon legal unreasonableness was not confined to decisions that no reasonable decision maker could have arrived at, but extended to decisions that lacked an evident and intelligible justification.[8]
[8] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76] (Hayne, Kiefel and
Bell JJ).
The applicant also submitted that, on the basis of the available country information, the only coherent, logical finding available to the Tribunal was that as all returnees would be charged with illegal departure offences, the applicant would at the very least face a real risk of being identified as having departed illegally and then being charged. In those circumstances, the Tribunal was then required to proceed to consider the applicant’s claim that he faced the prospect of being detained by the Sri Lankan authorities on the basis of his illegal departure and so was at risk of harm, including torture, in detention. It was submitted that the failure to consider the risks was based on the Tribunal’s conclusion about the remote likelihood of the applicant being charged, which was infected with illogicality.
Ground 2 was advanced on the alternate basis that, in concluding the applicant faced a remote risk of being charged, the Tribunal had erred because it misunderstood the country information cited in support of the finding at [127] that, since 2012, ‘all returnees’ who departed illegally have been charged with an offence upon return. The Tribunal had, in effect, treated the country information as meaning that only returnees who had left Sri Lanka when aged eight years or above would be charged. Little more was said, in writing or orally, in relation to Ground 2.
For the Minister, it was submitted that, for a number of reasons, the Tribunal’s reasoning at [127]-[128] was not illogical.
First, it was said that the Reasons at [127] should be read in context, and that on a fair reading, the Tribunal had found that only those persons who had departed the country illegally were arrested. Then it was said that as the applicant was below the age of criminal responsibility at the time his family had departed Sri Lanka in 1990, he could not be considered to have departed the country illegally. It followed, as the argument ran, that the applicant, by reason of his age, had not engaged in illegal conduct and thus it was reasonable, logical and rational to infer that he would not be arrested or charged. Accordingly, the Minister submitted that Grounds 1-2 were misconceived as the applicant’s age bore directly on the questions of whether he had engaged in illegal conduct and would be arrested or charged for such conduct.
Secondly, an alternative submission was made that the Tribunal’s reasoning was, at best, a matter upon which reasonable minds might differ. The Minister submitted that the Sri Lankan legislation cited by the Tribunal provided a probative basis for it to have concluded that the applicant would not be charged upon his return. The Penal Code provided that any act done by a child under eight years of age could not give rise to any offence. The circumstance that the Minister advanced this as an alternative submission implicitly accepted that the reasoning at [127]-[128] was illogical or irrational in at least some sense.
Thirdly, by way of further alternative submission, it was said that any error in reasoning by the Tribunal at paragraphs [127]-[128] would not constitute a manifest error vitiating its decision since the applicant had not impugned, but accepted, the existence of the Sri Lankan law which provided he was under the age of criminal responsibility at the time of departure from Sri Lanka. So it was said that, whether or not the applicant was charged, he would not be found guilty of having departed the country illegally and that the Tribunal’s reasoning, if it was found to be illogical, was not of such significance or materiality that the gravity of the error gave rise to any jurisdictional error.
Finally, it was submitted that consideration of the challenge made by Grounds 1 and 2 was to be considered in the wider context that the applicant pursued no complaint of the Tribunal having rejected his claims to face a risk of future harm by reference to an imputed LTTE opinion or association, or his status as a Tamil.
Legal unreasonableness
Illogical or irrational reasoning is one form of legal unreasonableness.
In Minister for Immigration and Citizenship v Li, the plurality confirmed that an administrative decision may be considered as unreasonable in more than one sense stating:
Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[9] Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is ‘manifestly unreasonable’. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.[10]
Their Honours endorsed the statement of Mason J in Peko-Wallsend that the fundamental ground for setting aside an administrative decision was that it was shown to be manifestly unreasonable. It is clear that manifest unreasonableness is a wider concept than is constituted by challenge of legal unreasonableness grounded upon a complaint that the decision is said to be one that no reasonable decision maker could have arrived at.[11]
[9] (1986) 162 CLR 24, [41] (Gibbs CJ and Dawson J agreeing at 30, 71).
[10] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [72].
[11] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 229.
The two principal contexts in which legal unreasonableness are all employed arise where an identifiable error has been made and where the outcome of the process is said to be legally unreasonable. Examples of identifiable or specific error include cases in which a finding of fact is not supported by any evidence[12] and where a decision-maker’s finding of fact is tainted by illogicality or irrationality.[13] Contrastingly, outcome focussed unreasonableness does not require the identification of a specific error. Instead, it proceeds upon recognition that an administrative decision-maker is entitled to an area of decisional freedom within which the decision is not susceptible to criticism on the ground of legal unreasonableness, notwithstanding that the court might have formed another view of the matter.
[12]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-356 (Mason J); Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775, [62] (Jessup J); [83]-[84] (Jagot J).
[13] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
The determination of legal unreasonableness is heavily fact dependent and inherently sensitive to context.[14] The concept is neither exhausted by rationality nor capable of reduction to a formula.[15] It is not confined by closed categories, nor limited to specific errors.[16] No single test of legal unreasonableness can be stated. The test of legal unreasonableness is stringent.[17] That is because the court’s role on judicial review is supervisory and confined: “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.”[18]
[14] Minister for Immigration and Border Protection v SZVFW, (2018) 357 ALR 408, [59]
[15] SZVFW, supra (2018) 357 ALR 408, [59] (Gageler J).
[16] SZVFW, (2018) 357 ALR 408, [81] (Nettle and Gordon JJ).
[17] Li, (2013) 249 CLR 332, [108]; SZVFW, supra (2018) 357 ALR 408, [11] (Kiefel CJ).
[18]Attorney-General (NSW) v Quin (1990) 170 CLR 1, [36] (Brennan J); SZVFW, supra (2018) 357 ALR 408, [51].
Where, as is the case under s 65, the legal criterion to be applied in the determination of an application demands a unique outcome, the process of review requires a conclusion on whether the decision was correct.[19]
[19] SZVFW, (2018) 357 ALR 408, [49] (Gageler J).
So too, the question of whether or not a decision taken in exercise of a statutory power was legally reasonable is one to which a unique answer is required and for which the court may give only one answer.[20] In Minister for Immigration and Border Protection v SZVFW, Nettle and Gordon JJ confirmed a conclusion that an administrative decision maker had exercised power in a manner was legally unreasonable was an evaluative – not discretionary – judgment. However, their Honours held (Kiefel CJ agreeing), that to so label a task as evaluative did not authorise a court to characterise a decision as legally unreasonable but then to proceed to reach an opposite view.[21]
[20]SZVFW, (2018) 357 ALR 408, [18], [54]-[59], [76], [127], [154]-[155].
[21] (2018) 357 ALR 408, [85], [18] (Kiefel CJ).
Judicial review of fact finding
Where an administrative decision is found to be illogical or irrational, this may ground a conclusion that the decision is affected by jurisdictional error such as to attract prerogative relief.[22] An administrative decision may be vitiated by jurisdictional error if the determination was “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.”[23]
[22] SZMDS, supra (2010) 240 CLR 611, [40], [57], [96], [121], [130]-[133], [135].
[23]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ); Gill v Minister for Immigration and Border Protection [2017] FCAFC 51, [59] (Griffiths and Moshinsky JJ).
The judicial review of an administrative decision, the challenge of which is based upon irrationality, illogicality or upon findings or inferences of fact said not to be supported on logical grounds, entails consideration of the fact-finding process that was undertaken in reaching an administrative decision. The correct approach is to ask whether it was open to the decision-maker to engage in the reasoning process which had been engaged in or to make the findings which were made on the material that was before it.[24] A challenge grounded upon irrationality will not be made out where the impugned decision is one upon which reasonable minds might differ.[25] Nor will an illogicality/irrationality based challenge be made out by merely demonstrating that a finding was factually incorrect.[26] Instead, the impugned finding must be shown to have been material to the ultimate decision.[27]
[24]SZMDS, supra (2010) 240 CLR 611, [133] (Crennan and Bell JJ); Minister for Immigration and Citizenship v SZKRT [2013] FCA 317, [151]-[153] (Robertson J); CQG15 vMinister for Immigration and Border Protection [2016] FCAFC 146, [60] (McKerracher, Griffiths and Rangiah JJ); ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174, [47] (Griffiths, Perry and Bromich JJ); Gill, supra [2017] FCAFC 51, [65] (Griffiths and Moshinsky JJ).
[25]SZMDS, supra (2010) 240 CLR 611, [135]; Gill, supra [2017] FCAFC 51, [62]; ARG15, supra [2016] FCAFC 174, [47]; CQG15, supra [2016] FCAFC 146, [60].
[26] ARG15, supra [2016] FCAFC 174, [53].
[27]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [89] (McHugh, Gummow and Hayne JJ); SZWCO v Minister for Immigration and Border Protection [2016] FCA 51, [64]-[67] (Wigney J); Gill, supra [2017] FCAFC 51, [65] (Griffiths and Moshinsky JJ).
To establish illogicality or irrationality sufficient to give rise to jurisdictional error in refusing a Protection visa, it must be demonstrated that the decision as to the state of satisfaction required by s 65 was one which no rational or logical decision maker could have arrived at on the same evidence as was before the Tribunal.[28] By extension, this court cannot conclude that a decision was irrational, illogical or unreasonable because the Tribunal reached one decision over another where the probative evidence was capable of supporting different processes of reasoning which were logically, rationally or reasonably open.[29]
[28] SZMDS, supra (2010) 240 CLR 611, [130] (Crennan and Bell JJ).
[29] SZMDS, supra (2010) 240 CLR 611, [131] (Crennan and Bell JJ).
Extreme illogicality or irrationality must be shown for relief to be available: Minister for Immigration and Citizenship v SZRKT;[30] ARG15 v Minister for Immigration and Border Protection;[31] CQG15 v Minister for Immigration and Border Protection;[32] DAO v Minister for Immigration and Border Protection.[33] For that reason, it is not enough for the question of fact to be one on which reasonable minds may arrive at different conclusions. Put another way, “a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion”: SZOOR v Minister for Immigration & Citizenship;[34] Minister for Immigration and Border Protection v SZUXN;[35] DYS16 v Minister for Immigration and Border Protection;[36] BZD17 v Minister for Immigration and Border Protection;[37] Minister for Immigration and Border Protection v Haq.[38] In DYS, Tracey, Murphy and Kerr JJ endorsed[39] a statement by Wigney J in SZUXN that:[40]
Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out (citations omitted)
Tracey, Murphy and Kerr JJ then stated:[41]
Where the present ground is relied on and the decision-maker has given reasons for his or her decision, the reviewing court will concentrate on those reasons with a view to deciding whether the reasons demonstrate a justification for the impugned decision.[42]
[30] [2013] FCA 317; (2013) 212 FCR 99, [148] (Robertson J).
[31] (2016) 154 ALD 174, 47] (Griffiths, Perry and Bromwich JJ).
[32] [2016] FCAFC 146, [60] (McKerracher, Griffiths and Rangiah JJ).
[33] (2018) 353 ALR 641, [4], [30] (Kenny, Kerr and Perry JJ).
[34] (2012) 202 FCR 1, [84] (McKerracher J, Reeves J agreeing).
[35] (2016) 69 AAR 210, [52], [54]-[56], Wigney J.
[36] [2018] FCAFC 33, [19], (Tracey, Murphy and Kerr JJ).
[37] [2018] FCAFC 94, [37], (Perram, Perry and O’Callaghan JJ).
[38] [2019] FCAFC 7, [72], (Griffiths, Gleeson and Colvin JJ).
[39] [2018] FCAFC 33, [19].
[40] (2016) 69 AAR 210, [55].
[41] [2018] FCAFC 33, [21].
[42]Citing cf Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [45] - [47] (Allsop CJ, Robertson and Mortimer JJ).
Accordingly, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning which it adopted.[43]
[43] SZMDS, supra (2010) 240 CLR 611, [133] (Crennan and Bell JJ).
The parties were agreed that the principles respecting irrationality and illogicality in the process of administrative decision-making were stated in Minister for Immigration and Citizenship v SZMDS.[44] The test is a stringent one and was stated by Crennan and Bell JJ as follows:[45]
. . . the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Their Honours held that 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.[46]
[44] (2010) 240 CLR 611.
[45] (2010) 240 CLR 611, [135].
[46] (2010) 240 CLR 611, [135].
In SZMDS,[47] Crennan and Bell JJ identified three means by which a decision might be shown to be demonstrably illogical or irrational:
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.
[47] SZMDS, supra (2010) 240 CLR 611, [135]; see also [78], (Heydon J).
This statement of principle has been applied by intermediate appellate and first instance courts on many occasions: see, eg, Minister for Immigration and Border Protection v Sabharwal.[48] In Sabharwal, the Full Court endorsed the analysis of Allsop CJ in Minister for Immigration and Border Protection v Stretton[49] that the question was:
. . . whether a decision-maker could reasonably come to the conclusion reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.
See also Singh v Minister for Home Affairs.[50]
[48] [2018] FCAFC 160, [45] (Perram, Murphy and Lee JJ).
[49] [2016] FCAFC 11; (2016) 237 FCR 1, [21].
[50] [2019] FCAFC 3, [57] (Reeves, O’Callaghan and Thawley JJ).
Resolution
An assessment of a challenge based upon irrationality or illogicality requires at a minimum, an identification of the argument together with those parts of the decision-maker’s reasons to which the argument was directed.[51] Of relevance to the present application is that findings or reasoning ‘along the way’ to reaching an administrative decision that are themselves illogical or irrational may also establish jurisdictional error.[52]
[51] AXE16 v Minister for Immigration and Border Protection [2018] FCA 646, [26] (Perram J).
[52]See eg. SZMDS, supra (2010) 240 CLR 611, [132] (Crennan and Bell JJ); DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641, [30(4)]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [34]; Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [45].
In this case, the applicant’s argument was focussed upon the reasoning at [127]-[128] whereby the Tribunal found that all returnees to Sri Lanka would be charged but released on bail, yet it concluded that the chance of the applicant being charged was remote since he was only six years of age at the time of departure and so could not be capable of an offence under the Penal Code. Those were findings along the way to the finding that there was only a remote chance of the applicant suffering harm as a result of being a person who had departed Sri Lanka illegally. And those findings underpinned the Tribunal’s ultimate finding that it was not satisfied the applicant would face a well-founded fear of persecution (or a real risk of significant harm) as a member of a particular social group; namely, as a person who had departed Sri Lanka illegally.
The Tribunal concluded that the applicant was unlikely to be charged with an offence in Sri Lanka since he had been aged six years at the time of departure and could not, for that reason, be capable of committing the relevant offence. This reasoning did not distinguish, in a linear sense, between the event of being charged with an offence and the later event of being tried and found not guilty of the offence for the reason stated. Why the authorities would treat the applicant on arrival as a person who had left Sri Lanka at age six years was not explained by the Reasons.
These propositions, as made in [127]-[128] of the Reasons were illogical. By s 45 of the Immigrants and Emigrants Act, it is an offence for a person to depart from Sri Lanka illegally. As the Tribunal accepted his evidence on this issue, the applicant had not departed Sri Lanka illegally because he had been under the age of eight years at that time. Nonetheless, on the available country information, since November 2012, all persons who have left Sri Lanka illegally have been arrested, charged and then bailed: Reasons, [127]. The Tribunal, however, found that the chance or risk of the applicant being charged with an offence of having departed Sri Lanka illegally was remote. The finding that there was a remote chance that the applicant would be charged was illogical in the sense that it was irreconcilable with the country information that all persons who returned to Sri Lanka after having left illegally were charged..
However, I do not accept that the Tribunal’s conclusion at [128] was illogical or irrational in the requisite sense. Nor am I satisfied that the Tribunal’s decision discloses manifest error. Illogicality in reasoning sufficient to establish jurisdictional error is not established by demonstrating that a finding was factually incorrect. The impugned finding must be shown to have been material to the ultimate decision. The ultimate decision was whether the Minister was satisfied that the applicant held a well-founded fear of persecution or there were substantial grounds for believing that, if returned to Sri Lanka, there was a real risk he would suffer significant harm by being detained.
The reasoning at [126]-[128] formed part of the evaluative task required of the Tribunal to make a prediction as to the likelihood of the applicant suffering serious or significant harm, relevantly, as a result of being charged, detained and convicted for an on offence contrary to s 45 of the Immigrants and Emigrants Act. Contextually, the Tribunal found at [79] that the applicant had departed Sri Lanka when his family travelled illegally to India, where they remained until 2004. In evaluating the Tribunal’s decision, I cannot assume that the Sri Lankan authorities would make that finding when the applicant was processed on arrival. However, I am entitled to assume that those authorities would act lawfully and in doing so would consider whether charges ought be laid. It would be open to those authorities to decide not to do so. And if they did, the country information concerning the applicable provision of the Penal Code would support a conclusion that the applicant may not be charged and thus detained. Further, if the predictive assessment was made that the applicant would be charged and detained briefly, before being granted bail, it was no part of the applicant’s claim that he could not provide the surety required upon being bailed. In particular, when addressing issue related to returnees who had departed Sri Lanka illegally, the pre-hearing submissions from the applicant’s migration lawyers focussed[53] attention on country information in support of a conclusion that there was a real risk the applicant would be detected upon arrival and subjected to torture and violence during interrogation.
[53] Submissions at [40]-[43].
The reasoning in [127] was qualified by the condition that the offence contrary to s 45 was of having departed Sri Lanka illegally. The Tribunal accepted that when the applicant had departed Sri Lanka in 1990, he was six years old. The Tribunal took into account that by s 7.5 of Ch IV of the Sri Lankan Penal Code, an act done by a person under the age of eight was not an offence. The Tribunal’s conclusion that the risk to the applicant of being charged was remote may be seen as a conclusion that the Sri Lankan authorities would be taken to have acted lawfully in processing the applicant upon his return and, upon the facts, concluding that he had not departed illegally when, aged six, he had left with his family to travel to India in 1990. On those facts, it was open to conclude that the Sri Lankan authorities would not charge the applicant. This conclusion required that a predictive assessment be made. It is not to the point that I might not agree with the whole of the Tribunal’s reasoning, however, on the basis of the Penal code, it was open to conclude that as the true Lankin authorities would act lawfully, the risk of being charged was, in the circumstances, remote.
Although the Tribunal’s impugned finding was infelicitously drawn, in my opinion, reading the Reasons fairly and as a whole, the assessment being made by the Tribunal at [126]-[128] formed part of its analysis that was concerned to address the prospect of the applicant being detained and so exposed to serious or significant harm. Apart from the Reasons at [126]-[128], the Tribunal had also put to the applicant that on the available country information, the most likely scenario was that persons who departed Sri Lanka would be fined and placed on remand for a very short period: Reasons, [64].
On the probative evidence that was before the Tribunal, a logical or rational decision-maker could have come to the same conclusion as that which was made; namely, that the chance of being exposed to serious or significant harm was remote. The case is to be distinguished from those in which there was a paucity of evidence to lend any support for a conclusion that the chance of the applicant suffering persecution or significant harm was remote.[54] To the contrary, there was, at the least, real room for a logical and rational person to reach the same decision. Contrary to the applicant’s submission, the Tribunal had before it country information that it had considered and which provided a basis for it to evaluate that risk. This was not a case in which no rational or logical decision-maker could have arrived at the conclusion that the chance of being exposed to serious or significant harm was remote.[55] The decision is to be evaluated in the context that the applicant did not challenge the pro-Buell’s findings rejecting his claims to face a risk of harm by reason of an imputed LTTE opinion or association, or his status as a Tamil. His challenge depended upon the articulated claim to face a risk of harm as a result of being a member of the social group comprised of persons who had departed Sri Lanka illegally.
[54] Cf BTW17 v Minister for Immigration and Border Protection [2018] FCAFC 10, [29]
[55] Cf SZMDS, [129], [130], [135].
In forming a view as to whether the chances of the applicant being charged with an offence for having departed Sri Lanka illegally, the Tribunal was entitled to give such weight to the evidence as was considered appropriate in all the circumstances.[56] It was open to the Tribunal to rely upon the evidence before it and in reasoning that the chances of the applicant being charged were remote.[57]
[56] AYY15 vMinister for Immigration and Border Protection [2018] FCA 130, [15] (Steward J).
[57]Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91, [33] (Tracey and Moshinsky JJ), [154] (Mortimer J).
In my view, Grounds 1 and 2 reflect no more than the applicant’s emphatic disagreement with the conclusion that the chances of his being charged were remote. It is well settled that emphatic disagreement falls well short of the standard required to establish that a decision-maker’s reasoning is either irrational or illogical.[58]
[58]Cf SZMDS, [129], BZY15 v Minister for Immigration and Border Protection [2018] FCA 323, [26], (Steward J).
Further, on the view that the reasoning at [127]-[128] was illogical, a separate question is whether the reasoning was tainted by extreme illogicality. It is not enough that the impugned finding was one about which reasonable minds might differ. In my opinion, the Minister’s alternative submissions are to be preferred. An available view is that the Sri Lankan authorities would arrest the applicant, and in the course of processing him upon entry, acting lawfully, would form a view whether he should be charged. Although the Reasons were expressed in absolute terms – that all returnees would be arrested, charged and bailed – it is open to understand that reasoning in the context of its further statement referring to the fact that under the Penal Code a person under the age of eight could not be guilty of an offence. In that wider context, it is open to understand the reasoning as recognising that the authorities would not lay charges against all persons who had departed illegally. The ultimate question was whether there was a risk of persecution or a significant risk of serious harm by reason of the treatment the applicant feared that he would suffer as a person who had departed Sri Lanka illegally. The decision reached by the Tribunal was, in my opinion, open. Contrary to the applicant’s submission, the finding on this issue did not lack an intelligible justification.[59] The Tribunal’s illogical reasoning at [127] was not sufficiently material to its ultimate finding as to the risk of harm that the applicant claimed. I am not satisfied that the demonstrated error is of such significance that I should be characterised as jurisdictional in nature.
[59]SZVFW, (2018) 357 ALR 408, [82] citing Li, (2013) 249 CLR 332, [76], [98], [105] (Nettle and Gordon JJ); see also at [10] (Kiefel CJ).
For the reasons above, I reject Grounds 1 and 2.
Ground 3 – integer of claim
Ground 3 of the amended application reads:
Further and in the alternative, the Tribunal failed properly to consider the Applicant’s claim or integer of a claim to fear harm in Sri Lanka by reason of the Sri Lankan authorities having an adverse interest in his family because they may want to hide revelations of the Sri Lankan Army sexually abusing the Applicants sister in the past.
Particulars
a.The Tribunal was required to consider the claim or integer of a claim referred to in ground 3 above in the sense of giving it realistic and genuine consideration.
b.The Tribunal’s reasons at [94] of the decision record or otherwise do not disclose active engagement with the claim or integer of the claim referred to in ground 3 above, leading to the inference that the Tribunal did not give the claim or integer of the claim genuine consideration.
Ground 3 advanced a complaint that the Tribunal had failed to give genuine consideration of a claim that the applicant feared a risk of harm on return by reason that Sri Lankan authorities had an adverse interest in his family based upon their concern to conceal revelations of the sexual abuse of his sister during her detention in 2009 – 2010.
The applicant submitted that an integer of this claim was that Sri Lankan authorities had an adverse interest in his family based upon a concern to conceal revelations of such sexual abuse. Although the applicant’s written submission identified the Reasons at [21(e)], [27(d)] as demonstrating that this integer of his claim had been relied upon and the source of those statements, in oral submissions, [27(i)] was added. In those parts of its Reasons, the Tribunal had distilled portions of the applicant’s original and a later statutory declaration[60] that dealt with:
a)claims of the torture and abuse meted out to his father and sister respectively during their year of detention following the end of hostilities in June 2009, including that some of this information had been relayed to him by his mother;
b)claims that his family did not know what information people had given to the SLA concerning his sister, but that they may have made a story up about her, and that “the SLA may be wishing to hide something that they did to her or to silence”; and
c)claims that, as recently as October 2014, the SLA had continued to come to his family’s house searching for his sister and on that last occasion had taken his father and beaten him.
The concluding claim recorded in the Reasons at [27(j)] was that if the applicant returned to Sri Lanka he would be targeted because of his sister.
[60]Although the Reasons erroneously refer to this later declaration as being dated 6 November 2013, it was common ground the declaration was dated 6 November 2014.
The applicant pointed to the Reasons at [89] where, based on country information, the Tribunal had accepted that his sister had been sexually assaulted during the period his family had been detained in the Chedikulam camp (in 2009-2010). Attention was then directed to the Reasons at [94] where the Tribunal had rejected the suggestion that the Sri Lankan authorities wanted to ‘silence’ the applicant’s sister was sufficient to warrant a conclusion there was a prolonged adverse interest in the applicant’s sister, his family or himself. It was submitted that this reasoning demonstrated the Tribunal had merely identified, restated and then rejected the claim that the applicant would be targeted as a result of a desire to silence him without having engaged in a process of active or genuine evaluation of that claim. This was said to amount to a failure by the Tribunal to discharge its statutory function, and so constituted jurisdictional error.
The Minister submitted that consistent with its obligation, the Tribunal had properly considered the applicant’s claims by subjecting them to a cogent process of evaluation.[61] It was also put that the Tribunal was not required to provide a line-by-line refutation of the evidence of the applicant so long as it has considered the claim.[62] The Minister submitted that, read fairly and as a whole, the Reasons supported a conclusion that the Tribunal had engaged in an active intellectual process in its consideration[63] of the claim respecting the applicant’s sister, and had provided detailed reasons for rejecting it. Again, it was submitted that consideration of this challenge was to be read in the wider context that the applicant made no complaint of a risk of future harm by reference to claims that had also been rejected; namely, by reason of an imputed LTTE opinion or association, or his status as a Tamil.
[61]Relying upon Minister for Immigration and Border Protection v MZYTS (2013) 203 FCR 431, [39], [45], [50].
[62] Re Minister for Immigration: Ex parte Durairajasingham (2000) 74 ALJR 405, [64]-[65].
[63]Relying upon Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248.
Genuine consideration of claim
The applicant correctly submitted that the Tribunal was required to give his claim realistic and genuine consideration and could not simply advert to the existence of a contention and proceed to reject it without having first engaged in an evaluative process to consider the matter.[64]
[64]Relying upon AVU v Minister for Immigration and Border Protection [2017] FCA 608, [11].
Where a claim is expressly made or clearly articulated and arose squarely on material before it (whether by way of established facts or probative evidence), a failure to deal with it may constitute a straightforward constructive failure to exercise jurisdiction.[65]
[65]See, eg, CDD15 v Minister for Immigration and Border Protection [2017] FCAFC 65, [18] (Perram, Robertson and Wigney JJ).
As an administrative decision-maker, a Tribunal must engage actively with the issues and such material as is presented on an application for the merits review of a decision: Minister for Immigration and Citizenship v Khadgi.[66] The issue was considered more recently, in Carrascalao v Minister for Immigration and Border Protection[67] where the Full Court stated:
[66] (2010) 190 FCR 248, [57]-[59].
[67] (2017) 252 FCR 352, [32], [48].
The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–7; 93 ALR 1 at 24–6). The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide” into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; 273 ALR 122; 119 ALD 446; [2010] HCA 48 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA’s comments on this matter in Swift v SAS Trustee Corporation (2010) 6 ASTLR 339; [2010] NSWCA 182 at [45]).
. . .
. . . It is appropriate to state two matters. First, a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof. Secondly, some broad guidance may be obtained from other authorities as to the kinds of circumstances in which such a finding could be made. In referring to these authorities, we do not suggest that the requisite evaluative judgment is to be conducted as though it involves a “tick the box” comparative exercise by reference to other decided cases. As we have emphasised, each case will necessarily turn on its own particular facts and circumstances.
Thus, the authorities emphasise the need for caution in determining whether proper, genuine or realistic consideration was given.[68]
[68]all See also BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [33]-[38] (Perram, Perry and O’Callaghan JJ).
Resolution
As stated above, the Tribunal had accepted that the applicant’s sister had been sexually assaulted in the period his family had been detained in the Chedikulam camp but rejected the suggestion that the SLA’s asserted desire to ‘silence’ the applicant’s sister was a sufficient foundation for his claim that the SLA had a prolonged adverse interest in the applicant’s sister or would want to target his family or himself for that reason.
I am satisfied that the Tribunal brought an active intellectual process to, and gave genuine consideration to the claim which was brought. While the Minister eschewed any suggestion that the applicant’s claim to fear harm as a target of the SLA by reason of its desire to silence his sister had not been put or clearly articulated, it is necessary to see this integer in the context in which the applicant’s claims for protection were made.
The evolution of the applicant’s claims was as follows:
a)by Part C of his visa application dated 4 August 2012, the applicant described the reasons why he had left Sri Lanka. Concerning the question of whether the applicant or members of his family had been associated with, or involved in, a political group or organisation, the applicant responded that his elder sister had been recruited by force to the LTTE but was now “in a different country.” He stated that he did not know what her role in the LTTE had been as he was then living in India; adding that the rest of his family had returned from India to Sri Lanka in 2004. He also claimed that his uncle had been killed and his father tortured;
b)by a statutory declaration made on 4 August 2012, the applicant claimed to fear harm and death from the Sri Lankan Police, CID, EPDP and SLA. Concerning the position of his sister and her sexual abuse in Sri Lanka, the statutory declaration stated :
18. My sister was also suffered likewise, however was brutalised and sexually abused, forced to strip and remain naked in front of many SLA. My mother told me that she believes that my sister was also raped by the SLA at that time.
. . .
20. However, during this interlude the SLA remained still interested in my sister and I believe desired to continue the barbaric activities against her. It was at this time, that my parents decided to send her to Saudi Arabia in the latter part of 2010, where she remains to the present time.
21. I have spoken to my sister in Saudi Arabia, she has indicated that she remains very traumatised over the horrific abuse suffered. However, is on a work visa there and is endeavouring to get on with her life.
. . .
29. I fear that the Police, CID, EPDP and SLA, will arrest and kill me on suspicion for my past and seek for me and take revenge against me.
In his initial statutory declaration, the applicant did not expressly link his fear of harm to the abuse of his sister;
c)by a further statutory declaration, also made on 4 August 2012, the applicant stated that he had not been convicted of any crime in any country, and had not been associated with any person who had been so convicted or could reasonably be suspected to have been involved in any criminal activities;
d)on 7 August 2012, the applicant attended a Departmental interview during which he stated that his family had left Sri Lanka in 1990 because his father was suspected of being an LTTE member. He said that after returning to Sri Lanka in 2009, his father had been detained and tortured. He reiterated that his sister, who had been raped by the SLA, had settled in Saudi Arabia. The applicant claimed that, by reason of his long absence from Sri Lanka, and as a result of an imputed political opinion “through his father’s detainment, he would be persecuted by the Sri Lankan Government”;
e)on 25 March 2013, the applicant’s migration agent provided a detailed submission that addressed the applicant’s claims stating, amongst other things, that the applicant: (i) was a Hindu; (ii) had fled, at age six years, with his family to India in 1990; (iii) remained in India with his wife and child whilst his parents and sister had returned to Sri Lanka in 2004; (iv) had hoped to return to Sri Lanka, but did not do so when he discovered his family had been detained; (v) heard from his parents that his father and sister had been subjected to torture and mistreatment, and that his mother believed his sister had been raped; (vi) clarified that his sister had been forcibly recruited to the LTTE in 2004-2005; (vii) believed that the SLA had not known of his sister’s involvement with LTTE at the time that she and his parents were detained; (viii) believed also that his sister had been tortured and raped while being detained, “this being inflicted on a lot of Tamil women held in these camps at this time.”; (ix) believed that the SLA became aware of his sister’s involvement with LTTE after she had been released from the camp and that they had begun looking for her from that time; and (x) also believed that the SLA had come to his family home looking for his sister. The submission concluded as to the claim to fear that:
[BRC16] continues to fear that if returned to Sri Lanka he and his family would face serious harm, including threats to his life and liberty, threats of violence or severe physical harassment and/or a denial of basic rights (including the right to earn a livelihood or he would face economic hardship that would threaten his ability to subsist).
f)the agent’s submission made the following express claims:
[BRC16] is outside of his country of nationality and is claiming a well-founded fear of persecution for reasons of:
1. His ethnicity as a Tamil;
2. His actual/imputed political opinion including of being a ‘perceived sympathizer/supporter of the LTTE’, or as someone perceived as holding views in opposition to the current Sri Lankan government;
3. His membership of the following particular social groups:
i.failed asylum seekers.
g)the agent’s submission identified a number of factors that were said to be relevant to an assessment whether the applicant faced a real risk of persecution:
1. His Tamil ethnicity, particularly as a young Tamil male;
. . .
3. He has family members known by the SLA for their actual and perceived links or association with the LTTE. This includes a sister who had been a former LTTE cadre and his father had been previously detained and tortured by the SLA on suspicion of an association with the LTTE.
4. He has resided in India since he was 6 years old . . .
. . .
6. He had departed Sri Lanka illegally; and . . .
h)the agent’s submission addressed the family links to the LTTE:
The background of [BRC16]’s family, including his father and sister’s previous history of being suspected for having an association with the LTTE and that his sister had in fact been a former LTTE member, would further heighten his risks of encountering serious harm on return to Sri Lanka at the hands of security forces and elements of working alongside security forces.
The ongoing targeting of Tamils by security personnel and armed groups on the basis of their suspected links to the LTTE was confirmed in the US Department of State’s most recent report on Sri Lanka published in May 2012. The report states:
. . . There were reports that detainees were released with a warning not to reveal information about their arrest or detention, under the threat of arrest or death (Footnote omitted).
. . .
The fact that [BRC16]’s family’s links to the LTTE is known to the authorities and would clearly present him with a risk profile entitling him to protection in Australia.
However, when at the very least, [BRC16] family links to persons with actual or perceived links to the LTTE are considered cumulatively with the additional dimensions in his case, we believe you cannot discount as too remote or insubstantial the risk he would face serious harm on return to Sri Lanka.
At this point, the applicant’s submissions articulated the perceived threat of harm to asserted links to the LTTE;
i)by a further statutory declaration made on 9 July 2014, the applicant clarified statements made in his earlier declarations which had been made at a time when, as he said, he had been more focussed upon his own claims for protection “rather than what my sister had done.” His declaration stated at [8], in part:
. . . My sister was raped by the Sri Lankan army, and I found it hard to speak about this issue, and I worried that if I spoke about this that my family would suffer. I didn’t want to speak about this to anyone, but they kept repeatedly asking me. I didn’t want to speak about it because it could bring shame to my family, and could create problems for my family. I was very nervous at the RRT hearing. I was uncomfortable to discuss my sister’s affairs. This is because I was paranoid that what I discussed at the RRT hearing could be leaked to other people. Most of the information came from my mother and she was telling me what happened and said that I should not come back to Sri Lanka.
The applicant’s July 2014 declaration also addressed[69] the claim that the SLA had pursued his sister as a member of the LTTE. This claim was based on information provided by his mother;
[69] At [13]-[18] and [26]-[28].
j)on 11 October 2014, the applicant’s migration lawyer addressed a submission to the Tribunal in which the claims for protection were detailed as follows:
9.The Review Applicant has a well-founded fear of being persecuted for reasons of his Tamil ethnicity, his imputed political opinion as a ‘perceived sympathiser/supported of LTTE’ and his membership of a particular social group of failed asylum seekers.
The applicant’s lawyer provided an extensive series of annexures to the submission, including detailed country information;
k)by a further statutory declaration made on 6 November 2014, the applicant gave additional evidence relating to his sister and other matters. Concerning his sister, the applicant said in part:
12. We also don’t know what information the people gave to the SLA about my sister. It could be that they told them the truth about her role as a teacher, or it could be that they made up a story about her and that is why the SLA are searching for her.
13. We also don’t know the details of what happened to her when she was sexually abused by SLA members. They may be wishing to hide something that they did to her or to silence her.
14. My sister is now in Saudi Arabia, . . .
15. She will never return to Sri Lanka for fear of her life.
As appears from this further statutory declaration, the applicant claimed not to know what information other people had given to the SLA about his sister, and speculated that it could have been that the SLA was told of her role as a teacher or “that they made up a story about her and that is why the SLA are searching for her.” Upon that basis, the applicant further speculated that the SLA may be wishing to hide something about its treatment of her and of their desire to ‘silence her’;
l)on 28 November 2014, the applicant’s lawyers provided a post hearing a submission to the Tribunal addressing a variety of issues, including:[70] (i) why, when completing an initial declaration, the applicant had been aware of his sister’s LTTE involvement, but not been aware of the sexual abuse suffered while in the camp; (ii) why the Sri Lankan authorities would not have discovered his sister’s LTTE involvement until after she had left the camp; (iii) his sister’s profile with LTTE; (iv) his sister’s escape from Sri Lanka on a false passport; and (v) his sister’s departure. The applicant’s lawyer again provided an extensive series of annexures to the submission including detailed country information.
[70] At [13]-[40].
The consideration of whether the Tribunal gave active intellectual consideration to the claim needs to be evaluated in the context of the Tribunal’s approach to its overall merits review of the application. Quite apart from the complaint that was made of a failure to consider actively this integer of the claim, the Reasons were otherwise comprehensive. While the applicant’s submission focussed upon the Reasons at [94], the Minister asked that [94] be considered in the wider context of the matters addressed in the preceding nine paragraphs and the twelve that followed it. I accept that to read the Reasons at [88]-[106] fairly and as a whole, it, is clear that the Tribunal did give the claim detailed consideration.
The Tribunal undertook a detailed analysis of the evidence and submissions. It was a matter for the Tribunal to determine the weight to be attached to particular items of evidence including the available country information and other documentary evidence that was before it.
I have set out above the analysis given by the Tribunal to the evidence and submissions made in the application: see at [12]-[13], [16]-[18], [22]-[34]. Extensive submissions and documentary evidence were made before, during and after the hearing. The Tribunal considered the applicant’s evidence in detail. In the course of doing so, it put its concerns to the applicant as to why a person who had left Sri Lanka at the age of six years would now have a profile as to attract attention of the authorities. The Tribunal put to the applicant that his sister’s profile with the LTTE was limited to teaching the Tamil language to children. Suggestions that his sister may have had some higher level of LTTE involvement were rejected. No challenge was made to that finding.
Having found that the applicant’s sister had, at best, a low profile with LTTE, it was quite open to reject the claims that other villagers had reported her supposed LTTE involvement to Sri Lankan authorities as being speculative. It was also open to reject the claim that those authorities had searched for the applicant’s sister at the parent’s home at intervals of 2-3 months over the preceding six years, or to have done so in that manner since the end of hostilities. It was also open to the Tribunal to conclude the applicant’s derivative claim that – as her brother – the applicant faced a real risk of serious or significant harm upon return to Sri Lanka on the basis that Sri Lankan authorities would now have an adverse interest in him or his family as persons who may want to hide revelations of the SLA having sexually abused his sister in time that she had been detained before 2010.
The conclusion on the question of whether a person had a well-founded fear of persecution is a fact-dependent question upon which reasonable minds may differ.[71] In my opinion, it was well open to the Tribunal to conclude as not being well-founded, the applicant’s claim that he feared persecution on the basis that Sri Lankan authorities would now have an adverse interest in him or his family by reason of their being targets of the SLA in light of the abuse of his sister in 2009-2010.
[71] BRF038 v Republic of Nauru [2017] HCA 44, [43] (Keane, Nettle and Edelman JJ).
Further, it was not necessary for the Tribunal to refer to every piece of evidence or every contention made by the applicant in concluding that the applicant did not face a real risk of serious or significant harm as a result of his claim of being targeted in light of the SLA’s asserted desire to silence his sister, or him.[72] An administrative decision-maker, having doubted the plausibility of a claim is entitled to reject it without having to list the entire sub-set of reasons upon which it has done so: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs.[73] Nor was the Tribunal required to provide a line-by-line refutation of the applicant’s evidence so long as it has considered the claim.[74]
[72]Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [46].
[73] [2004] FCAFC 10, [14].
[74] Re Minister for Immigration: Ex parte Durairajasingham (2000) 74 ALJR 405, [65].
For the reasons above, I reject Ground 3.
Conclusion
The application must be dismissed.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 3 July 2019.
(Gageler J), [84] (Nettle and Gordon JJ). (North, Dowsett and McKerracher JJ).
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