BWT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FCA 1286
•8 November 2024
FEDERAL COURT OF AUSTRALIA
BWT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1286
Appeal from: BWT17 v Minister for Immigration & Anor [2020] FCCA 2204 File number: NSD 1070 of 2020 Judgment of: KATZMANN J Date of judgment: 8 November 2024 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia dismissing application for judicial review of a decision of the Immigration Assessment Authority – where Authority affirmed decision of Minister’s delegate not to grant appellant a Safe Haven Enterprise (Class XE) Subclass 790 visa – where Authority found appellant’s fears not well‑founded outside local area – where question of relocation to another part of his country of nationality allegedly not considered by delegate and Authority found appellant able to relocate without risk – whether Authority failed to consider exercising its discretion under s 473DC of the Migration Act 1958 (Cth) to invite appellant to provide information about relocation within country of nationality – whether failure to invite appellant to provide further information about relocation legally unreasonable Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) ss 2‑3; Sch 2, Pt 1, item 228, Sch 16, Pt 8, Div 1, item 42
Migration Act 1958 (Cth) ss 5AA, 36(2), 65, 474, Pt 7AA
Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
BNGP v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 609
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2003) 117 FCR 424
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
CRI028 v Republic of Nauru [2018] HCA 24; 256 ALR 60
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 74 Date of hearing: 6 November 2024 Counsel for the Appellant: Ms F McNeil Solicitor for the Appellant: Rasan T Selliah & Associates Solicitor for the First Respondent: Mr G Pasas of Clayton Utz ORDERS
NSD 1070 of 2020 BETWEEN: BWT17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
KATZMANN J
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KATZMANN J:
Introduction
The appellant is aggrieved by a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the Minister to refuse to grant him a Safe Haven Enterprise (Class XE) (subclass 790) Visa, a type of protection visa. He challenged the Authority’s decision in the Federal Circuit Court of Australia (FCCA) (as the Federal Circuit and Family Court of Australia (Div 2) was then known) but in a judgment delivered during the height of the COVID‑19 pandemic, the primary judge dismissed his application. This is an appeal from that judgment. In his notice of appeal, the appellant pleaded that the primary judge was in error in rejecting the two grounds of review he advanced before the Authority. In his submissions in support of the appeal, he abandoned the second ground. For the reasons that follow the first ground does not succeed and accordingly the appeal must be dismissed.
Background
The appellant is a Sri Lankan national. He arrived by boat in Australia on 10 October 2012 without a visa. Accordingly he was an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth). Some three years later, he was informed that the Minister had lifted the bar under s 46A of the Act and was therefore allowed to apply for a protection visa. On 1 March 2016 the appellant applied for a protection visa. The visa application was accompanied by what the application described as a “statement of claims”, which was a statement signed by the appellant detailing the bases upon which he claimed to be entitled to protection.
Summaries of the appellant’s claims appear in the Authority’s reasons (A). The primary judge summarised them further at [10] of his judgment (J), where his Honour wrote that the appellant claims to fear harm:
(a)from the Criminal Investigation Department (CID), Sri Lankan Army (SLA) and/or the police, local Sinhalese thugs and villagers as a Tamil from Sri Lanka whose family faced previous harm due to their ethnicity, involvement in elections and imputed connections with the Liberation Tigers of Tamil Eelam (LTTE); and
(b)as a failed asylum seeker who departed Sri Lanka illegally.
While the absence of the adjective “serious” before “harm” understates the nature of the claims, the appellant did not contend that the summary was inaccurate or unfair. Indeed, he embraced it in his submissions. In any event, there can be no doubt that the primary judge understood the severity of the harm that the appellant claimed he would face if he had to return to Sri Lanka.
The appellant attended an interview with the delegate on 21 July 2016.
The legislative scheme
Section 65 of the Act gives the Minister the power to grant visas to non-citizens. Upon the lodgement by a person of a valid visa application and the payment of the requisite fee, it compels the Minister to exercise that power in the applicant’s favour if the Minister is satisfied that the criteria for the grant of the visa are satisfied. Those criteria are contained in the Act and the regulations made pursuant to it. Like other powers conferred on the Minister under the Act it may be delegated (s 496).
The criteria for a protection visa relevantly include the criteria in s 36(2) of the Act, namely that the applicant is:
(1)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations either because:
(a)they are a refugee (s 36(2)(a), commonly referred to as “the refugee criterion”); or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to a receiving country, there is a real risk that they will suffer significant harm (s 36(2)(aa), commonly referred to as “the complementary protection criterion”); or
(2)a non-citizen in Australia who is a member of the same family unit as a non-citizen who is mentioned in either (a) or (b) above and holds a protection visa of the same class as that for which the applicant applied (s 36(2)(b) and (c)).
Amongst other things, for a person with a nationality to be considered a refugee for the purposes of the Act the person must be outside their country of nationality and, owing to a well-founded fear of persecution in that country for reasons including race, religion, membership of a particular social group or political opinion and be unable or unwilling to avail themselves of the protection of that country (ss 5H and 5J). There will be a well-founded fear of persecution if there is a real chance that, on return to their country of nationality, the person would be persecuted for one or more of those reasons everywhere in that country: s 5J(1). The reason must be “the essential and significant reason” for the persecution; and the persecution must involve both “serious harm” to the person (the visa applicant) and “systematic and discriminatory conduct”: s 5J(4). “Serious harm” relevantly includes “a threat to the person’s life or liberty”; “significant physical harassment”; and “significant physical ill-treatment”: s 5J(5)(a)–(c).
“Significant harm”, for the purposes of the complementary protection criterion, is defined in s 36(2A) to mean arbitrarily depriving a person of their life; the imposition of the death penalty; or subjecting a person to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The process that applied to a claim for a protection visa by a non-citizen in the appellant’s position was referred to in the legislation as a “fast track” process and dealt with in Pt 7AA of the Act. The scheme is described in detail in the joint judgment of Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [6]‑[38]. Part 7AA was repealed by the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) (ART Consequential and Transitional Provisions Act) on 14 October 2024 (ss 2‑3; Sch 2, Pt 1, item 228) but continues to apply in relation to the appellant as a person whose application was finally determined under Pt 7AA of the Migration Act before 14 October 2024: ART Consequential and Transitional Provisions Act, Sch 16, Pt 8, Div 1, item 42.
In summary, Pt 7AA provided for a limited form of review, very different from the reviews for which the Act provides for other kinds of protection visas. The process of review of a fast‑track decision was automatic in that it did not depend on the lodgement by the unsuccessful visa applicant of an application for review. If the Minister (or the Minister’s delegate) decided not to grant the visa, the Minister was obliged to refer the visa application to the Authority. The default position was that the review was to be conducted on the papers, without an oral hearing. While applicants had a right to be heard before the Authority made a decision on their application, the extent of that right was circumscribed in various ways.
For a start, s 473DA(1) provided that Div 3, which dealt with the conduct of the review, and contained ss 473DA to 473DF inclusive, together with ss 473GA and 473GB, which appeared in Div 6, was taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority.
The Authority was not required to give a referred applicant any material that was before the Minister at the time of the making of the decision to refuse to grant the visa: s 473DA(2).
Moreover, the Authority was required to conduct the review by “considering the review material” provided to it by the Secretary of the Minister’s Department without interviewing the referred applicant or accepting or requesting new information (s 473DB(1)), except to the extent that it “got” new information from the referred applicant or some other person under s 473DC and proceeded to “consider” that new information under s 473DD: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at [2]. “Information” in this context is “a communication of knowledge about some particular fact, subject or event”: Plaintiff M174/2016 at [24] (Gageler, Keane and Nettle JJ). Information was “new information” for the purposes of Pt 7AA if it satisfied two conditions: first, that it was information which was not before the Minister at the time of the making of the decision to refuse to grant the visa and, second, that it was information the Authority considered may be relevant: s 473DC(1). The Authority could invite a person to give new information either in writing or at an interview: s 473DC(3). But the Authority had no duty to get, request or accept any new information whether requested to do so or in any other circumstances: s 473DC(2). And it was only permitted to consider new information if the conditions imposed by s 473DD were met.
There is no right to appeal from a decision of the Authority and the only basis upon which the decision can be reviewed is for jurisdictional error: Migration Act, s 474; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. To succeed on an appeal from a judgment of the FCCA, the appellant must satisfy the Court that the primary judge’s decision was affected by appealable error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2003) 117 FCR 424.
The Authority’s decision
The Authority’s decision and reasons are lengthy. Given the limited scope of the appeal, however, it is unnecessary to refer to all of the findings or the reasons for them. The following account is sufficient for present purposes.
The Authority found that the appellant is a Tamil who was born in the Central Province of Sri Lanka and that he and his family were harassed and mistreated. In particular, it found that the appellant “experienced mistreatment, harassment and beatings by local officials, the army/police, and Sinhalese, villagers and thugs, as well as curfews and restrictions on his and his family’s movements”. The Authority also found that he and his uncle were threatened by police and local villagers after his uncle lodged a complaint with the authorities about the murder of a friend of his uncle who came to the appellant’s aid when he was being harassed by villagers when in his early teens. It attributed the harm to his Tamil ethnicity alone, finding that the appellant was not suspected of having links to the LTTE.
Based on country information about the improved situation for Tamils and the appellant’s “low profile”, however, the Authority found that there was no real chance that, if he returned to Sri Lanka, he would come to any harm by reason of his ethnicity, any actual or imputed political opinion or his family’s history or profile. The Authority was satisfied that the appellant was chased and beaten by supporters of a Sinhalese candidate after handing out flyers for, and walking beside, a Tamil candidate in a council election in his mother’s home area in November 2011. But the Authority considered his involvement in politics was “low level”, would not change if he were to return, and, in light of the country information, there was no real chance he would suffer harm, let alone serious harm, for those reasons.
Nevertheless, the Authority was satisfied that “there are credible risks to the [appellant] and his family in his mother’s home area from Sinhalese thugs and/or corrupt local officials” and “a more than remote chance that he could be seriously harmed if he were to return to that area”.
The reference to his mother’s home area was a reference to an area in the Nuwara Eliya District in the Central Province where the appellant’s mother and maternal uncles were still living and where the appellant was living until November 2011 or thereabouts. The appellant’s parents were apparently divorced. Before leaving Sri Lanka, the appellant had been living for several months with his father and stepfamily in the Batticaloa District in the Eastern Province of the country.
Whereas the Authority was satisfied that there was a real chance or risk that the appellant would face serious and significant harm in Sri Lanka from corrupt local authorities in what it variously described as his mother’s home area or the appellant’s former home area, it was not satisfied that he would face a real chance or risk of serious or significant harm if he were to return to Batticaloa. It explained (at A[23]):
However, in order for the fear of harm to be well-founded, it must relate to all areas of the receiving country. The delegate asked the applicant why the applicant could not return to live in his father’s home area in Batticaloa. The applicant referred to the specific risks to him and his father in Batticaloa, but not to the risks related to his mother’s home village. He confirmed nothing had happened to him in Batticaloa specifically, nor had he been threatened by the Sinhalese thugs from his mother’s area while he was there. He did confirm, however, that his mother remained under threat. It is apparent from his evidence that while he considers the threats in his mother’s home area to be credible and ongoing, he has not faced threats or harm for those reasons outside of this area, and indeed he moved to Batticaloa to avoid being harmed further. There is no country information before me to suggest that Tamils are targeted for harm by Sinhalese thugs in the east of Sri Lanka. For those reasons, I am satisfied that any risks to the applicant (or his family) within this area are localised and do not relate to all areas of the receiving country and, having regard to s.5J(1)(c), I find his fears of persecution on this basis are not well founded.
The Authority then proceeded to address the appellant’s claims as they related to “his other home” with his father in Batticaloa. It set out his various claims and referred to evidence he gave to the delegate in support of them at A[24]–[26] and considered the merits of those claims at A[27]–[33]. It noted the appellant’s claim that he was “unaware of the true catalyst for his departure until after he arrived in Australia” (A[24]). It referred to the appellant’s claim that during the elections in 2012 his father received a threat that he (the appellant) would be killed or kidnapped if his father did not allow the men who made the threats to cast fraudulent votes; that his father had complained to the Human Rights Commission about the threats; and that “the Karuna Group will definitely kill him and his father” (A[25]). It also referred to the appellant’s claim that his father had long faced difficulties because of his role as a Tamil police officer (A[26]).
With respect to the first claim, the Authority said (at A[27]):
On the applicant’s own evidence his father continues to work as a policeman. The applicant confirmed he faced no direct threat or other harm while in Batticaloa. When asked by the delegate whether his father, his step mother, or their children had faced any problems in Batticaloa since the 2012 threat, he confirmed they had not. I find it implausible that if the applicant and his father were threatened by the Karuna Group during the 2012 election, and that his father refused to comply with those threats, that his father, stepmother and stepsiblings could continue to live, work and study in Batticaloa without issue or interference from the Karuna Group. I do not accept that such a threat would have been localised to his son, or that his son’s departure would have resolved or defused the Karuna Group’s concerns with the applicant’s father. The information before me is that during and immediately after the civil war, the Karuna Group acted as a de facto security force in the north and east of the country that engaged in serious human rights violations and criminal activities such as extortion, attacks, kidnappings and ransom collection. In that context, I find it implausible that the Karuna Group would not have pursued the applicant’s father and family further.
The Authority concluded that the first claim was not credible (at A[31]). Consequently, it did not accept that the appellant or his father had been threatened by the Karuna Group or any other paramilitary group during the 2012 election or at any other time or that the appellant or his father would be at risk. And it found that there was no real chance the appellant would be harmed for such reasons in the future if he were to return to Batticaloa, relying on the matters set out below and the country information about the reduction in electoral violence in Sri Lanka, the growth of Tamil political parties there, and the corresponding reduction in the activities of paramilitary groups like the Karuna Group, which were not mentioned as active in recent reports.
The Authority’s reasoning process is set out at A[28]–[31]. The Authority noted (at A[28]) that the appellant had provided “a copy of a complaint card/receipt from the Human Rights Commission in Batticaloa” indicating that on 10 September 2012 — two days after the provincial elections — a complaint was lodged by a person with the appellant’s father’s name and initial about a threat having been made against the appellant. Since “no other detail or correspondence” was provided about the nature of the complaint or any investigation or response by the Commission, however, the Authority considered that the document provided “little corroboration of [the appellant’s] claims” and therefore gave it “limited weight” (at A[28]). The Authority observed that this claim was not raised in the record of his arrival interview and that the delegate raised the omission with the appellant in her interview with him. It found the appellant’s response (that his father did not want to worry the appellant) inconsistent with the speed with which his father was said to have arranged for the appellant to leave the country and various other matters and found it difficult to accept that he and his father would not discuss the threats as a reason for his departure if they had in fact been made (at A[29]‑[30]).
With respect to the second claim, the Authority noted (at A[32]) that the appellant had spoken “in general terms” of other problems his father faced as a police officer, enemies he had made in the course of his work, and the marginalisation he had faced from other Tamils who had accused him of working for the government. The Authority was satisfied that this was very likely true and accepted that the appellant’s father may have acquired enemies because of his role. On the other hand, the Authority considered it significant that the appellant had never been threatened due to his father’s occupation and that, “on his own evidence, his father and family are safe in Batticaloa”. The Authority acknowledged that “in later evidence” the appellant had suggested that his father’s family confined themselves to their home and that stones and petrol bombs were thrown at their house. But the Authority did not accept the later evidence on the grounds that the subject matter of that evidence was serious but had not been mentioned in the appellant’s visa application and it contradicted the appellant’s “earlier spontaneous evidence that his father and his family are safe in Batticaloa”. It concluded that neither the appellant nor his family had ever been harmed or threatened in connection with his father’s job and that there was no real chance that they would be harmed on this basis in the future, adding:
Furthermore, I consider that the marginalisation, discrimination and other pressures the applicant’s father has experienced in the past will likely be tempered by significant changes in the country, reforms and prosecutions within the Sri Lankan authorities, and the recruitment of several hundred Tamils to the Sri Lankan police.
Later, in the context of its consideration of the complementary protection criterion, the Authority considered whether there was a risk of harm to the appellant beyond the area where he and his mother had lived before he moved to Batticaloa, rejecting the appellant’s contention that his home was in the area where his mother and her family lived:
[55][F]or the following reasons, I do not accept that this is his home area and/or that he would return to live there. In his arrival interview, he indicated that his most recent address was with his father in Batticaloa, since January 2012 to September 2012. In his protection visa application, he indicates that he lived in Batticaloa between November 2011 and August 2012, before returning to his mother’s home area for a month, then returning to Batticaloa for a further month. During which time he claims he was attacked and remained at his uncle’s shop before taking his mother’s advice to return to Batticaloa. In the last year before he left Sri Lanka, he had spent the majority of his time living in Batticaloa with his father and step family. Even when living elsewhere, he was financially dependent on his father. The applicant was completing studies during this time and indicated that he had wanted to continue his studies. The applicant did not indicate any desire to return to his former home area. I find that Batticaloa was his home area for this assessment, and is the area he would voluntarily return to if he was returned to Sri Lanka. I have found above that there is not a real chance of the applicant being seriously harmed in Batticaloa for any of the reasons he has claimed. For the same reasons, I am satisfied there is not a real risk of the applicant facing significant harm in his home area of Batticaloa for any of the reasons he has claimed.
[56]In the event that I am wrong on the question of his home area, I have separately weighed whether the applicant could relocate to Batticaloa or elsewhere in Sri Lanka where there is no real risk of him facing significant harm. The applicant was asked whether he could live in Batticaloa or relocate to another area in Sri Lanka during the visa interview. The applicant said that he did not think he could live anywhere else because he would need to sign up with local officials. Advice from DFAT is that there are no official restrictions to internal relocation in Sri Lanka. I accept there may be administrative hurdles in him relocating elsewhere in Sri Lanka (such as getting clearance from his local GS), but I do not accept this would be a barrier to him relocating to Batticaloa where he has family and where he has previously resided and studied. In terms of whether it would be reasonable for him to relocate to Batticaloa, the applicant has family in Batticaloa, and a place to stay. He speaks Tamil and has lived in Batticaloa previously. He has completed some studies there, and stated that he had wished to continue those studies if he had not left the country. I accept it would be challenging for him to be away from his mother and other family members due to the risks in his home area, however I do not accept this would make it unreasonable for him to relocate elsewhere. I am also satisfied that with the continued reforms in the country, the corruption and discrimination in his mother’s home area will continue to abate. Weighing all the evidence before me, I find it would be reasonable for the applicant to relocate to an area of the country (Batticaloa) where there would not be a real risk that the applicant will suffer significant harm. It follows that there is not a real risk that the applicant would suffer significant harm if he were returned to Sri Lanka.
The application for judicial review
Two grounds of review were ultimately pressed. Only one is relevant to the appeal. That was ground 5. Its focus was the finding of the Authority on the question of relocation in circumstances in which the delegate did not need to consider that question, since she did not accept that the appellant was at risk of either serious or significant harm anywhere in Sri Lanka.
By ground 5 the appellant pleaded that the Authority failed to exercise, or consider exercising, its discretion under s 473DC to invite him “to clarify in writing or at an interview” why he would not face the risk of serious or significant harm in Batticaloa in circumstances where “the dispositive issue of the [appellant’s] relocation to Batticaloa was not a reason or part of the reasons for affirming the delegate’s decision” and that its failure to do so was legally unreasonable.
The reasons of the primary judge
The primary judge was not persuaded that the Authority failed to consider exercising its discretion or, if it did, that I that any failure to exercise the discretion in the appellant’s favour was legally unreasonable. With respect to the former, his Honour considered that the appellant had failed to discharge his onus of proof. With respect to the latter, his Honour concluded that any failure to exercise the discretion “could not be said to be lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense”. That conclusion was based on the following three matters: first, the Authority’s decision as to “relocation” (in A[56]) was made in the alternative that the Authority was wrong to find that Batticaloa was the appellant’s “home area” and that finding was not erroneous; second, the appellant had made submissions on the question of relocation at paras 46 and 47 of his statement of claims; and third, the appellant was provided with an opportunity to explain why he could not relocate during the interview with the delegate.
The appeal
The appeal challenges the primary judge’s disposition of ground 5 of the application for judicial review.
The proposition underlying ground 5 was apparently drawn from Minister for Immigration and Border Protection v CRY16(2017) 253 FCR 475 (Reeves, Robertson and Kerr JJ). In that case the appellant was a Lebanese national whose application for a SHEV had been refused by the delegate on the ground that he would not face a real chance of persecution or a real risk of significant harm if he were returned to Lebanon. The Authority found that his fear of harm did not relate to all areas of Lebanon and that he could relocate to Beirut where he would not face such risks.
The primary judge quashed the Authority’s decision on the basis that it was legally unreasonable for the Authority not to consider giving the applicant an effective opportunity to address the issue it found dispositive. The Full Court agreed and dismissed the Minister’s appeal, holding at [82]‑[83]:
[82]Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
[83]As in Li, at [82], it is not apparent how the conclusion not to consider the exercise of the discretionary power was reached in the present case, having regard to the facts and to the statutory purpose for which the discretion to get new information was directed.
(Emphasis added.)
The argument
The appellant’s argument was as follows. First, it can be inferred from references in the Authority’s reasons that it knew what the appellant had said at the interview with the delegate, including that he had provided information to the delegate which was inconsistent with the Authority’s findings at A[55]‑[56], and therefore that it knew that the appellant was likely to have specific information on his particular circumstances and the risk of serious or significant harm he would face if returned to Batticaloa. Second, “[g]iven the significance of the discrepancies between the responses” given by the appellant to the delegate and the Authority’s account of those responses in its reasons, it may also be inferred that the Authority did not consider whether to exercise its discretion under s 473DC to invite the appellant to provide further information. Third, the Authority’s failure to consider the exercise of the discretion means that “it disabled itself from considering” whether it was “reasonable, in the sense of ‘practicable’” for the appellant to relocate to Batticaloa (see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24] (Gummow, Hayne and Crennan JJ)). Fourth, the Authority’s failure to exercise, or consider whether to exercise, the discretion was legally unreasonable and the primary judge erred in holding otherwise. Finally, he submitted that the alleged error was material because, had the Authority considered whether to exercise its discretion and then exercised it by inviting the appellant to clarify in writing or in an interview whether he could relocate to Batticaloa if he were required to return to Sri Lanka, “the matters to be taken into account by the Authority would have been different”.
Consideration
The first submission was not disputed and may be accepted.
The first question, then, is whether the primary judge was wrong to reject the argument that the Authority failed to consider whether to exercise the discretion. The answer is that he was not.
The appellant relied on what he contended was “a marked contrast” between the Authority’s reasons at [55]–[56] and the following extracts from an unauthorised (but uncontentious) transcript of his evidence before the delegate:
D: So can you tell me why you couldn’t live in Batticaloa?
A (through the interpreter): Because in Batticaloa all are Tamil. Because my father is attached to police force all the Tamil think that we are working with Government or supporting Government and we are going against Tamils. Tamils in Batticaloa think that we are working with Government and doing something against Tamil.
D:Did anything happen to you in Batticaloa because of this?
A:Nothing happened to me but my father had frequent threats. Not only that I don’t think I would have stayed there if I lived longer. I wouldn’t have lived longer after the election voting.
D:So it sounds like that you are particularly concerned about what will happen to your father and his job and he will be arrested that will affect his family?
A:That is one that is going to happen in Batticaloa and the other one what’s happening in Thalavakalai is they will kill my family and kill me to. 100% I know if I go back I won’t live. I won’t be able to live.
…
D:So other than Thalavakalai and Batticaloa is there any other place do you think you could live without any hassles caused by people in Thalavakalai or Karuna group?
A:Definitely not. I don’t think to live longer than 2 days in other places because when I go to Thalavakalai I have to go to signing thing and I can’t leave to any other place. More than this I won’t be alive.
(Emphasis in appellant’s submissions.)
The Minister did not take issue with the appellant’s submission that, in view of the various references in the Authority’s reasons to information discussed in the interview with the delegate, it should be inferred that the Authority either received a transcript of the interview or listened to a recording of it.
The passages in the Authority’s reasons which are said to be markedly different from the above passages in the transcript of the interview are the findings in the last four sentences of A[55] (see [27] above) and the following two sentences of A[56]:
The applicant said he did not think he could live anywhere else because he would need to sign up with local officials … I do not accept Batticaloa where he has family and where he has previously resided and studied that [the administrative hurdles] would be a barrier to him relocating to Batticaloa where he has family and where he has previously resided and studied …
The appellant submitted:
Given the significance of the discrepancies between the responses provided by the appellant to the Minister’s delegate in the protection visa interview and the purported (but inaccurate) restating of those responses in the delegate’s reasons, it may also be inferred that the Authority did not consider whether to exercise its power to invite the applicant to clarify in writing or at interview whether he could relocate to Batticaloa if required to return to Sri Lanka, pursuant to the Authority’s powers under s 473DC(3) of the Act.
I reject the submission.
During oral argument, when asked to identify with precision the passages in the Authority’s reasons which were inaccurate or inconsistent with the appellant’s account, counsel for the appellant pointed to the following:
…I find it implausible that if the applicant and his father were threatened by the Karuna Group during the 2012 election, and that his father refused to comply with those threats, that his father, stepmother and stepsiblings could continue to live, work and study in Batticaloa without issue or interference from the Karuna Group … (A[27])
… I reject his claim to fear harm from the Karuna Group and his father’s participation in the 2012 election … (A[33])
… I find that Batticaloa was his home area for this assessment, and is the area he would voluntarily return to if he was returned to Sri Lanka … (A[55]
… The applicant was asked whether he could live in Batticaloa or relocate to another area in Sri Lanka during the visa interview. The applicant said that he did not think he could live anywhere else because he would need to sign up with local officials … (A[56]).
She argued that, in considering the risks in Batticaloa, the Authority was focused on risks posed to his father and other members of the family, and the requirement to sign up with local officials, and ignored his evidence to the delegate (set out at [37] above) that he would not have survived had he remained in Batticaloa and that he would be killed if he returned to Batticaloa or anywhere else in Sri Lanka.
It is true, as the appellant emphasised in his submissions, that he reported in his statement in support of his visa application that his father received an anonymous phone call in 2012 that “certain persons would be coming to vote and should not be prevented” otherwise his son would be kidnapped and killed and this was the reason his father arranged for him to leave Sri Lanka. It is also true that in that statement he mentioned that his father had “complained to the human rights” about those threats and that he (the appellant) could not stay in, or return to, Batticaloa on that account. Furthermore, it is also true that in the passages from A[27], A[33], A[55] and A[56] upon which the appellant relied, the Authority did not refer to the appellant’s accounts of the risks he would face if he were to return to Batticaloa or any other part of the country. But it is not true that the Authority ignored the appellant’s evidence.
It is trite that the decisions of administrative decision‑makers must be read as a whole and considered fairly: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 (Kirby J). That point was reinforced in the judgment of the plurality (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) in BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [38] in the context of the same question raised by the present case: Their Honours observed that where, as here, “the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision‑maker’s statement of reasons”, whether the inference should be drawn is to be determined on the basis of two principles: first, that the statement of reasons must be read fairly and not in an unduly critical way and second, that the statement of reasons “must be read in light of the content of the statutory obligation pursuant to which it was prepared”.
Far from ignoring the appellant’s evidence about the risks he claimed he would face beyond his mother’s “home area”, the Authority not only adverted to it but evaluated it. That can readily be seen when the paragraphs from which the selected passages were taken are read as a whole.
At A[23], for example, the Authority referred to the delegate’s question about why the appellant could not return to Batticaloa and the appellant’s reference in response “to the specific risks to him and his father”. Similarly, at A[25], the Authority referred to the appellant’s evidence about the threats made to his father which he told the delegate involved threats to kill him (the appellant) and claims that the Karuna Group would “definitely kill him”. Even in the passage selectively cited from the Authority’s decision at A[27], the Authority referred to the appellant’s evidence about the threats to both himself and his father and goes on to find them implausible. The appellant’s position that threats to kill him were made in Batticaloa is the subject of the Authority’s reasons at A[23]‑[33]. It is immaterial that the Authority did not refer to them expressly in A[55]‑[56]. After the passage in A[55] upon which the appellant relied, the Authority explained why it was of the view that the appellant would voluntarily return to Batticaloa if he were denied a visa, picking up its earlier reasons:
I have found above that there is not a real chance of the applicant being seriously harmed in Batticaloa for any of the reasons he has claimed. For the same reasons, I am satisfied there is not a real risk of the applicant facing significant harm in his home area of Batticaloa for any of the reasons he has claimed.
That the impugned findings were at odds with the appellant’s evidence is entirely unremarkable. Like the delegate, the Authority did not believe the appellant. It is no part of the appellant’s case that the findings were not open on the evidence.
The appellant’s submission flies in the face of the repeated warnings in the authorities against construing administrative decisions, as Heydon J put it in Minister for Immigration and Citizenship v SZMDS(2010) 240 CLR 611 at fn 73, “with an eye keenly focused on … or an ear keenly attuned to the perception of error”.
I am at a loss to understand how the making of findings inconsistent with a referred applicant’s account to a delegate implies that the Authority did not consider whether to exercise its discretion to invite the applicant to give new information. It follows that I am not persuaded by the second submission and the third submission falls away.
I now turn to the fourth submission. That gives rise to the question whether the primary judge was wrong to hold that the failure to exercise the discretion was not legally unreasonable.
The appellant relied on the summary of general principles of legal unreasonableness given by Perry J in BNGP v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 609 at [45]‑[50], with which Bromwich and Kennett JJ agreed at [138]. Two points made in the summary are presently relevant. They are first, that an evaluation of whether an administrative decision is legally unreasonable must be made having regard to the terms, scope and policy of the statutory source of the power; and second, that the determination of the question depends on “whether no rational or logical decision‑maker could arrive at the relevant decision on the evidence before the decision‑maker”: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85] (the Court); see also SZMDS at [130] (Crennan and Bell JJ).
In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 from which the first point was drawn, Allsop CJ observed at [11]:
The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.
His Honour emphasised at [12] that it was “[c]rucial to remember … that the task for the Court is not to assess what it thinks is reasonable” (and to quash the decision if it concludes that any other view is erroneous) but to evaluate the quality of the decision by reference to the statutory source of the power and assess whether the decision was lawful having regard to the scope, purpose and objects of the power.
The appellant submitted that the Authority’s failure to exercise, or consider exercising, its power in s 473DC(3) was legally unreasonable but did not explain why that was so. Rather, he submitted that it was notable that the primary judge did not address the discrepancies between his evidence before the delegate “and the way in which that evidence was paraphrased by the Authority”. He did not submit that the Authority’s failure to exercise the power lacked a rational foundation or an evident or intelligible justification or was plainly unjust, arbitrary, capricious or lacking in common sense having regard to the terms, scope and purpose of the statutory source of the power and therefore outside the range of possible lawful outcomes.
This submission, at least as put in writing, is concerned with the adequacy of the primary judge’s reasons and is outside the scope of the appeal. If it is to be understood as a contention that the Authority’s failure to exercise, or consider exercising, its discretion to seek information from him was legally unreasonable because it knew he had provided information regarding Batticaloa that was inconsistent with its findings, that contention must be rejected. In substance, that amounts to a submission that it was legally unreasonable not to give the appellant an opportunity to comment on a matter upon which the Authority was minded to rely in affirming the delegate’s decision. That is tantamount to a submission that it is illegally unreasonable not to give a referred applicant the same rights afforded to applicants for review of other migration decisions, including the express obligations in ss 424AA and 424A and which required the Administrative Appeals Tribunal to “give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. That is contrary to the legislative scheme against which the question of legal unreasonableness must be evaluated.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, a case concerned with the exercise by the Refugee Review Tribunal of the power to review under Pt 7 of the Act, the High Court held that, absent any notification by the Tribunal to the contrary, an applicant is entitled to assume that the issues the delegate considered dispositive of the application are the issues arising in relation to the decision under review and, if the Tribunal is inclined to reach its decision by reference to another issue, a failure to notify the applicant would be a denial of procedural fairness. The Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) said at [35]:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
However, as the Full Court (Reeves, Robertson and Rangiah JJ) observed in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [75]‑[76], there was no provision in Pt 7AA akin to s 425, which required the Authority to invite a referred applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review and it was open to the Authority to disagree with a delegate’s decision without providing the referred applicant with an opportunity to respond.
If the appellant’s submission is to be understood as a submission that the Authority’s failure to exercise the power in s 473DC(3) was “plainly unjust”, I reject it. While it was of course open to the Authority to squarely put the inconsistencies to the appellant, it was not bound to do so and I do not think it can be inferred from the Authority’s reasons that it committed a jurisdictional error in not giving him an opportunity to address them.
The primary judge held that there was no error in the Authority determining that Batticaloa was the appellant’s “home area”. By “no error”, I take his Honour to have meant “no jurisdictional error”. The appellant did not suggest that the Authority’s finding on this question was incorrect, let alone legally unreasonable, although he embraced the remarks made in CRI028 v Republic of Nauru [2018] HCA 24; 256 ALR 60 about the use of such an expression.
In CRI028 at [45] Gordon and Edelman JJ said:
The concept of a "home area" or a "home region" is not derived from the Refugees Convention. These terms have been used from time to time in judicial reasoning. There is nothing inherently objectionable or remarkable about their use in that context. But their sole function is as concise descriptors, which may be convenient in considering whether a person could reasonably be expected to relocate from one area in the country of their nationality to another. These terms do not displace the relevant and necessary inquiry. And there is no basis in the text or the purposes of the Refugees Convention to treat such descriptors as though they were terms in a statute to which meaning can and must be given. The decision of the Federal Court of Australia in SZQEN v Minister for Immigration and Citizenship should not be followed to the extent that it suggests otherwise.
In the present case, the Authority used the term “home area” to refer to the place to which it considered the appellant would return if it were to affirm the delegate’s decision. That was a factual finding and a necessary starting point for the inquiry about whether it was reasonable for the appellant to relocate to another area of his country of nationality. The appellant did not argue otherwise. Nor did he contend that the Authority failed to consider whether he could reasonably be expected to relocate “from one area in the country of [his] nationality to another”. Any such contention would be bound to fail as it is clear from the Authority’s reasons that it did so.
I have difficulty, however, accepting the underlying premise of the appellant’s contention that “the dispositive issue of the appellant’s relocation in Batticaloa was not a reason or part of the reasons for affirming the delegate’s decision”. That is because the delegate found, amongst other things, that the appellant was not at risk of serious or significant harm either in Batticaloa or anywhere else in Sri Lanka. The only substantive difference between her reasons and those of the Authority was their conclusions concerning the level of risk in Thalavakalai.
I accept that the issue of relocation was “dispositive” for the Authority and not the delegate, insofar as the Authority, unlike the delegate, accepted that the appellant was at risk of serious harm in at least one locality. It follows that, unlike the delegate, the Authority was required to reach a conclusion about whether it was satisfied that it would be reasonable for the appellant to relocate to another part of the country where he would not be exposed to a real risk of significant harm.
But the fact that the issue of relocation was not “dispositive” for the delegate does not mean that she failed to consider the issue or give the appellant notice of it. And the appellant was well aware that relocation was a potential issue even before the interview so the Authority’s finding on that question could not have taken him by surprise.
The appellant addressed the subject in his statement of claims (at [46]‑[47] and [49]). The delegate raised the subject with him at the interview. Furthermore, the delegate gave the appellant the opportunity to provide submissions in writing after the interview and the appellant availed himself of that opportunity. In those submissions, prepared by the appellant’s then solicitor/migration agent, he argued that he could not return to the area in which his father resides for the same reason he could not return to his mother’s village, namely, his imputed political opinion as a supporter of the LTTE. The submission concluded:
We therefore submit that given the harm [the appellant] has faced and witnessed and is likely to continue to experience should he be forcefully returned to Sri Lanka in all areas of the country, Australia owes [the appellant] protection and should abide by [its] obligations.
Over seven weeks later, the delegate published her decision, rejecting that submission, finding:
Overall, I do not find this claim to be credible. In interviewing the applicant it is apparent that he fears some Sinhalese thugs from Thalavakele, that he has lived a difficult life in which he has faced bullying and societal discrimination, the break-up of his family, other tragic events within his family, and has had to give up his education and study. In questioning the applicant, he appeared to be more concerned about the welfare of his family if he were to be returned and the consequences to his father and his profession if he was to be found to have departed Sri Lanka illegally. Whilst I accept part of the applicant’s original reason for departing Sri Lanka may have been to escape harassment and harm by local thugs in Thalavakele, the applicant’s account of learning of new threats to his life after arriving to Australia appear implausible and added to enhance his claims for protection. Whilst the applicant is adamant that he will be killed upon return to Sri Lanka, the applicant had no supporting evidence to satisfy me that he would be targeted by the Karuna group in Batticaloa or any part of the country. The applicant’s father continues to remain in Batticaloa, has had no threats to his life, and his new wife and sons continue to live without any harm to their lives on account of his father’s involvement in the election. I do not consider it plausible that the Karuna group would maintain an interest in targeting the applicant above and beyond other family members residing in Batticaloa. Given they have taken no action towards the applicant’s family in Batticaloa, I find it implausible they would pursue the applicant some four years after the alleged threat. I find it more plausible that if the Karuna group were so intent on enacting revenge they would have taken any opportunity to cause harm to the remaining members of the applicant’s family in Batticaloa. Overall I do not accept the applicant’s claim as credible and find that he has embellished his story to strengthen his protection claims.
(Emphasis added).
While these were reasons that the delegate was not satisfied that the appellant satisfied the refugee criterion, they were also part of the reasons the delegate was not satisfied that the appellant satisfied the complementary protection criterion.
The Secretary was required to give the Authority the delegate’s decision, the material provided to the delegate by the referred applicant and any other material relevant to the review in the Secretary’s possession or control (s 473CB). There is no reason to think that obligation was not complied with in this case. It is evident from the Authority’s reasons that it had regard to all the material it was given.
Moreover, the appellant furnished the Authority with submissions which addressed the risk of harm outside Thalavakalai, albeit limited to the submission that he was at risk of harm from “Sinhala thugs” and that “the ability of the police to provide effective protection in other areas of the island would be of concern which the [Authority] must consider”.
The appellant argued that it was unreasonable for the Authority not to consider exercising the power to seek further information from the appellant or to exercise that power because the delegate’s questioning failed to adequately explore the nature and extent of the harm the appellant might face in Batticaloa and other parts of Sri Lanka apart from Thalavakalai. As I have already explained, that is not true of Batticaloa. In view of the opportunities the appellant was given to elaborate on this subject, both orally and in writing, and the extent to which he addressed the matter when availing himself of those opportunities, there is no reason to think that he had any more information to offer.
This is a very different case from CRY16 in which the referred applicant was not asked a single question about relocation in the interview, the issue arose for the first time in the Authority's reasons (see CRY16 at [76]), and the Authority had no information on the applicant’s particular circumstances or the impact of relocation to Beirut (CRY16 at [82]). Here, in contrast, the appellant was questioned at the interview about relocation; the issue was addressed by the appellant twice in writing and once orally, and there was evidence in the material provided to the Authority which contained information on the risks the appellant claimed to face if he relocated to any other part of his country of nationality. It was not legally unreasonable for the Authority to rely on the material without requesting the appellant to provide “new information” about a subject he had addressed multiple times.
In these circumstances and for all these reasons, I cannot accept that any failure to consider whether to exercise the power in s 473DC(3) or the failure to exercise the power was unreasonable. In particular, I am not persuaded that in failing to invite the appellant to comment on the inconsistencies in his accounts or the findings it was disposed to make, the Authority’s conduct was illogical, irrational, unjustified, unjust, arbitrary, capricious or lacking in common sense having regard to the terms, scope and purpose of a review under Pt 7AA.
Conclusion
The application should be dismissed. Costs should follow the event.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann. Associate:
Dated: 8 November 2024
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