CBI18 v Minister for Immigration
[2020] FCCA 1018
•1 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CBI18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1018 |
| Catchwords: MIGRATION – Visa – protection visa – whether failure to consider evidence intrinsic to claim – whether failure to conduct a review – whether failure to consider integer of claim – whether decision unreasonable, illogical or irrational – failure to consider relevant material demonstrated – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.473CB(1)(b), 473CC, 473DD(b), pt.7AA |
| Cases cited: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 |
| Applicant: | CBI18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 156 of 2018 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 2 March 2020 |
| Date of Last Submission: | 2 March 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 1 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schipp |
| Solicitors for the Applicant: | Australian Presence Legal |
| Counsel for the Respondents: | Ms Milutinovic |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
There be an order in the nature of a writ of certiorari setting aside the decision of the Immigration Assessment Authority dated 22 March 2018 affirming the decision of the delegate of the first respondent made on 12 January 2018 rejecting the applicant’s application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa.
There be an order in the nature of a writ of mandamus that the Immigration Authority review according to law the decision of the delegate of the first respondent dated 12 January 2018 rejecting the applicant’s application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa.
The first respondent do pay the costs of the applicant as agree or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 156 of 2018
| CBI18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 22 March 2018. The decision affirmed an earlier decision not to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) Visa (‘the visa’).
On 8 August 2018, the applicant filed an Amended Application. On 17 February 2020, the applicant submitted a Further Amended Application, along with his written submissions, on which he sought to rely for the purpose of the proceedings before me. The first respondent opposed the application to rely on the Further Amended Application, pointing to the fact that the applicant had had almost two years since the time of initially filing these proceedings in which to determine the grounds on which he sought to rely. I granted leave for the applicant to amend the application in order to rely on the reformulated grounds 1 and 2 and the additional grounds 3 and 4.
Counsel for the applicant then indicated that ground 2 was not to be pressed. Accordingly, the matter proceeded before me on three grounds as follow:
“The IAA decision was infected with jurisdictional error, in that:
1.The Document at CB 99
a.The IAA failed to consider to [sic] all of the review material, in particular the document at CB 99, or
b.The IAA failed to provide reasons for finding that the document at CB 99 was not material.
…
3.Beatings/Mistreatment by the CID in the IDP camp
a.The IAA failed to consider an integer of the Applicant claims, in that it did not consider the Applicant’s claims that he suffered from mistreatment from the CID while he was in the IDP camp.
4.Illogicality
a.The IAA acted unreasonably, illogically, without active intellectual consideration in that it:
i. Determined that the Applicant’s profile was not one which would bring him to the adverse interest of authorities.
ii. Determined that the Applicant’s scarring would not give rise to an imputation of an adverse profile.”
(re-produced verbatim)
The background to this matter was not the subject of significant dispute. I have paraphrased the helpful summary provided by the first respondent in its outline of submissions.
Background
The applicant is from Sri Lanka and arrived by boat on Cocos Island in October 2012. He applied for the visa on 24 August 2016. That visa was refused by a delegate on 12 January 2018. Under Part 7AA of the Migration Act 1958 (Cth) (‘the Act’), the decision of the delegate was referred automatically to the IAA for a merits review. A written submission was provided to the IAA by a representative of the applicant. That submission annexed certain country information that the applicant wanted the IAA to consider.
The applicant is a Tamil and Hindi from the north of Sri Lanka. He joined an organisation known as Tamil Elam Liberation Organisation (‘TELO’) and between 1983 and 1986 he spent time in India where he received training with TELO. He participated in the civil war for about one year on his return to Sri Lanka. Ultimately, TELO joined forces with the government of the day, which caused the applicant to leave it in order to support the Liberation Tigers of Tamil Elam (‘LTTE’).
He claims that his support for the LTTE involved providing them with food and supplies. He knew certain members of TELO with whom he trained who later took on positions with the government. He claims that two of his brothers, a step-brother and his daughter were cadres with the LTTE. He says the two of his brothers and his daughter were killed during the conflict. After the cessation of hostilities, the applicant claims to have been held in an Internally Displaced Persons (‘IDP’) Camp where he was questioned by the Criminal Investigation Department of the police (‘CID’). During those questionings, he says that he was beaten. He says that after he was released from the IDP, the CID came to his house on several occasions to question him. This caused him to leave Sri Lanka. He says that the CID continued to visit his house to search for him after he left.
The bases of his fears of harm relate to his links and involvement with the LTTE and TELO, and also as a failed asylum seeker who had departed Sri Lanka illegally.
The Findings of the IAA
The IAA had regard to the submissions of the applicant to the extent that it did not constitute new information.[1] The IAA did not have regard to an unedited report from the Committee Against Torture dated 30 November 2016 or the transcript of a speech relating to internal security in Sri Lanka on the basis that s 473DD(b) had not been satisfied and that this amounted to new information.
[1] Court Book (‘CB’) 245 [5].
The IAA was satisfied that the applicant was a Tamil and a Hindu from the north of Sri Lanka.[2] It also accepted his claim to having been a member of TELO and that he had illegally travelled to India for training purposes with that organisation. It accepted that he reloaded and supplied weapons for TELO on the frontline in the civil war on his return to Sri Lanka. It accepted that he left the organisation in about 1986 but did not accept that he had ever been charged with any offences relating to his TELO training.[3] It reasoned that if the Authority had an interest in him because of his TELO activities, they would not have waited for longer than 15 years to pursue him. It did not accept that he had been questioned in 2012 following his release from the IDP camp.
[2] CB 246 [9].
[3] CB 247 [12].
The IAA accepted the applicant’s claims to having assisted the LTTE and that he was not a cadre of that organisation. Similarly, it accepted that his brother and daughter were low-level LTTE cadres and that two of his brothers had been killed during the civil war.
The IAA accepted that the applicant had been detained as claimed, and that he had been questioned by the authorities about his involvement with the LTTE and scarring on his legs. It found that his evidence in this regard was inconsistent, and as a result concluded that he had not been questioned on as many as five occasions. It did not accept that he had been beaten by the CID or that he had been subjected to questioning after his release. It relied on country information to conclude that whilst the applicant had some dealing with the authorities after the conflict, it could not be satisfied that that was anything more than incidental, given the post-conflict presence of government forces in the area in which he lived. The IAA rejected his claim that the CID had continued to visit his house or that they were actively pursuing him since his departure. It accepted that he may be identified as having been a failed asylum seeker if he were to return to Sri Lanka. The IAA did not place weight on a letter from a member of parliament from his home district which stated that the applicant was wanted by armed groups because the applicant himself had not claimed to fear harm from armed groups.
Ultimately, the IAA did not accept that there was a real chance of the applicant being harmed due to his TELO involvement 30 years ago because there was an apparent lack of interest on the part of the authorities in the applicant’s TELO activities. It concluded that his ethnicity would not see him being imputed with membership of the LTTE or opinions that were sympathetic to them. The IAA accorded the 2012 UNHCR guidelines which asserted that a low-level involvement with the LTTE might mean that a Tamil person would have a profile of interest to the government. It did so on the basis that the guidelines were dated and conditions within Sri Lanka had changed significantly since that time.[4]
[4] CB 252, [32].
It rejected his claims as to scarring and that he had any real connections of significance to the LTTE, notwithstanding the involvement of his family members because it rejected that he had been questioned or detained at all with the exception of his time in the IDP camp. In part, the reasoning of the IAA was that given the applicant had not been required to undergo rehabilitation and was only detained in the IDP camp for a year, the inference to be drawn was that the authorities did not have an adverse interest in him. Similarly, the IAA did not accept that he was at risk of harm as a returning asylum seeker. Any questioning on a period of detention or penalty that might be imposed upon him for having left the country illegally would not amount to systematic and discriminatory conduct in the relevant sense.
The IAA concluded that the applicant did not meet the refugee criteria under the Act and, similarly, was not satisfied that he met the complementary protection criteria.
Submissions
Applicant’s submissions
Ground one was argued on the basis that in failing to consider relevant material and provide reasons on a highly material matter, the IAA had constructively failed to exercise its jurisdiction to conduct a review.
Counsel for the applicant particularised this ground as being a failure to take into account a letter from the applicant’s wife[5] addressed to the local village officer. That letter stated, in part:
“… My husband’s brothers XXX and XXX and our daughter XXX were killed by Sri Lankan Security Forces Shell Attack and Arial Attack due to the country abnormal situation.
My husband was a member of an organisation against Sri Lanka Government due to this my husband due to fear of life my husband left from Sri Lanka to save his life and after his left Sri Lanka Security Forces Investigation Officer visit our house frequently in inquired about my husband and they threat me asked my husband’s whereabouts and they still searching my husband due to this we are living hiding, in this situation if my husband may return to Sri Lanka he may face danger in his life in Sri Lanka. Therefore sir, please be good enough to certify that above mentioned facts are true and correct, for which act shall be much thankful.”[6]
(re-produced verbatim and names redacted)
[5] CB 99.
[6] Ibid.
Mr Schipp, for the applicant, submitted that it is inexplicable that the IAA made no mention of this letter in its decision record. The significance of that letter was clear, it provided corroborative information of the claims made by the applicant, including:
a)That he was a member of an organisation against the Sir Lankan government;
b)He had fled the country in fear of his life;
c)That there had been frequent visits to his house by the security forces since his departure during which enquiries were made about him;
d)That he was still the subject of interest to the security forces; and
e)That his family were in hiding and had been subject to threats.
The contents of that letter had been certified by the village officer and for that reason the significance of it should have been self-evident. The assertions contained in the letter were the subject of an adverse finding by the IAA and yet it failed to even mention it. In failing to deal with the letter, the IAA had failed constructively to exercise its jurisdiction. In the alternative to that submission, Mr Schipp contended that a proper inference could be drawn consistent with the authorities that the IAA had not considered the letter to be material, yet had failed to provide reasons for that finding. Given the critical nature of the information in the letter and the potential it had to corroborate the applicant’s version of events, the failure to mention it could be a proper basis for drawing an inference that it had not been considered at all.[7]
[7] Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 [34].
As to ground 3, counsel relied on the well-established principle in Htun v Minister for Immigration and Multicultural Affairs[8] that a failure to consider an integer of a claim will amount to a jurisdictional error. In that regard, the applicant’s complaint is that his claim as to the nature and extent of mistreatment he had been subjected to by members of the CID whilst in a refugee camp was not properly understood or assessed by the IAA. His claim was that he had been subjected to questioning and beatings. The IAA found that he had been questioned but did not make any finding as to whether or not he had suffered beatings. It then moved on to consider that part of his claim which dealt with the period following his release from detention in the refugee camp. It was submitted that the extent of his mistreatment whilst in the refugee camp was directly relevant to the profile the authorities perceived him to have. That in turn was a relevant consideration when assessing whether, and if so to what extent, the authorities would continue to have an interest in him. The IAA itself regarded the question of adverse interest by the CID as being a central aspect of the applicant’s claims. Given that was the case, the way in which he was treated in the refugee camp was obviously a material matter. A proper inference could be drawn from the failure to mention it that it was not considered.
[8] [2001] FCA 1802 [42].
Ground four in relation to unreasonableness and/or illogicality and/or irrationality was argued with respect to the IAA’s finding as to the applicant’s profile and also with respect to the finding that his scarring would not give rise to an imputation of an adverse profile.
As to the profile finding, it was submitted that the finding that he had a low profile[9] was irrational given that the applicant had received weapons training; had served on the front line loading and supplying weapons for the TELO of which he was a member; that he was for some time associated with the Liberation Tigers of the LTTE;[10] and the provision of weapons of itself was a matter that gave rise to high risk.[11] All of those matters were accepted by the IAA. It was particularly irrational given that the applicant had claimed to have joined the LTTE and not merely supported it, but in any event he was involved with that group for 23 years. Further, he had three brothers and a daughter who were cadres of the LTTE and cadres were noted in the country information to be persons who might have need for protection.[12] Further, the failure to make any finding about whether he was the subject of physical mistreatment during his period in the refugee camp was directly relevant to the profile with which he might be imputed. The failure of the IAA to indicate what more recent country information it relied on and preferred over the 2012 UNHCR guidelines, meant that there was no intelligible justification for the finding it made with respect to his low profile. In the absence of any indication as to what material it preferred, there was simply no justification for that decision.
[9] CB 251 [28].
[10] CB 248 [14].
[11] CB 252 [31].
[12] CB 176.
With respect to the finding as to the significance of the applicant’s scarring, it was acknowledged that the IAA gave consideration to country information on that matter.[13] Once again, there is no indication in the decision record as to which of the items of country information it gave weight to in reaching its conclusion. In the submission of the applicant, the reasoning of the IAA turned on the following passage:
“34.The applicant was not identified as requiring rehabilitation while being held in the IDP camp and did not appear to otherwise come to the adverse attention of the authorities, notwithstanding I accept that he would have been questioned in the camp. At this time he would have already sustained any scarring from the conflict which he now has. In light of the country information, and given any scarring he has did not impute him with an adverse profile while he was detained in the camp following the cessation of hostilities. I do not accept any such scarring would bring him to the adverse attention of the authorities should he return to Sri Lanka.”[14]
[13] CB 252 [33].
[14] CB 252 [34].
It was submitted that it was illogical, irrational and bordering on the absurd to draw a connection between a conclusion that may have been made by the CID when the applicant was in a refugee camp in 2010 to justify a conclusion that the applicant would not be subject to adverse attention if he were to return to Sir Lanka now. On its face, the IAA appears to have reasoned that the mere fact that his scarring was not regarded as significant a decade ago, would dictate how he was perceived now. That path of reasoning could properly be described as illogical or irrational.
Submissions of the first respondent
With respect to ground one, the first respondent reminded the Court of the principle that it is not necessary for a Tribunal in its written reasons to refer to every piece of evidence and contention by an applicant and that a line by line refutation of an applicant’s evidence is not required.[15] It was submitted that the certification by the village officer of the letter of the wife did not elevate its importance such that the IAA was required to refer to it. Further, it was submitted that it could not be said that the IAA ignored relevant information because the matters referred to in the letter were dealt with elsewhere in the decision record.[16] In addition, it was submitted that that letter was amongst the material annexed to the applicant’s visa application which materials were available to the Tribunal. In light of that, this Court should not be too ready to draw an inference that it had not been considered. In the event that the Court found that the letter had not been considered, it was submitted that it was not material to the outcome of the hearing. That was particularly so given that the Tribunal had dealt with the assertions contained in the letter and rejected them for reasons which were open to it.
[15] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 [46]; Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 [67].
[16] CB 246 [8], 251 [28], 247 [10], 248 [14] & 248-249 [16]-[22].
As to ground three, the Minister submitted that the IAA clearly took notice of the claim that the applicant had been beaten whilst in the refugee camp when summarising the scope of the applicant’s claims early in its reasons.[17] The beatings were said to have occurred in the context of being interviewed by the CID. Later references by the IAA to interviews and being questioned by the CID should properly be construed as being cognisant of the totality of the applicant’s claims to mistreatment whilst he was in the refugee camp including references to beatings.
[17] CB 246 [8].
It was submitted by the Minister that the matters complained of in ground four were not demonstrative of extreme illogicality or irrationality and nor could the findings of the Tribunal on those matters be regarded as legally unreasonable. The findings had a clear and intelligible basis.
Consideration
I am satisfied that the IAA fell into jurisdictional error in the manner identified in ground one of the application in that it failed to consider relevant material, namely, the letter provided by the applicant’s wife. That letter was highly material to the applicant’s claims and the failure to consider it amounted to a constructive failure to exercise jurisdiction.
In discharging its function under s 473CC of the Act, the IAA must have regard to all information supplied to it by the Secretary under s 473CB(1)(b). It is to be accepted that a Court should not be too ready to infer that a matter has not be considered by an authority tasked with merits review where the claims have been properly identified and the reasons are otherwise comprehensive. The effect of the submission of the first respondent is that all of the matters referred to in the letter of the wife were dealt with in the course of dealing with the topics which comprised the claims made by the applicant. I am not satisfied that that submission disposes of the applicant’s complaint. The first respondent asks the Court to focus on the IAA’s treatment of the claims rather than individual pieces of evidence relied on to support them. However, as observed by Perry J, there is “no bright line between a failure to consider a ‘claim’ and a failure to consider a piece of evidence …”[18] That was also the effect of the observation in Minister for Immigration and Citizenship v SZRKT[19] where Robertson J had this to say:
“111.… it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
112.As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.”
[18] AVC16 v Minister for Immigration and Border Protection [2018] FCA 1238 [27].
[19] [2013] FCA 317.
In approving the decision in SZRKT, the Full Court recognised and applied a proposition flowing from Yusuf[20] namely, that jurisdictional error may encompass a Tribunal ignoring relevant material in a way that effects the exercise of a power.[21] As the Court noted, that proposition had also been recognised by the High Court in SZJSS[22] on which Robertson J relied in SZRKT.
[20] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
[21] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 [68].
[22] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.
So the question becomes, has the applicant demonstrated that the IAA failed to perform the statutory task under the Act given the nature of the claims made before it and the nature of the material relied on by the applicant?
As I have noted, the letter was highly material. It provided potential corroboration that the applicant had been part of an anti-government organisation as opposed to the IAA’s finding that he was a mere supporter.[23] It potentially corroborated that he had left Sri Lanka in fear of his life whereas the IAA found that he was not in fear of the authorities. It potentially corroborated a matter referred to by the applicant and which was within the direct knowledge of the wife, namely that the security forces had visited their house frequently seeking the applicant’s whereabouts, a matter on which the IAA found against him.[24] Finally, if the contents of the wife’s letter were accepted, it could have established that the attention of the authorities was of such concern to the wife, that she and other members of the family had gone into hiding. As counsel for the applicant submitted, whilst that was not a claim specifically made by the applicant himself, it was a matter directly consistent with his claim that the visits to his home were sufficient to demonstrate that he was of interest to the authorities. The IAA rejected that he was at any risk because of familial links.[25] The materiality of the letter arose not because it raised any claims but because it was an item of evidence that was capable of corroborating claims that had been made. There is no indication in the decision record that the IAA weighed that highly material document in the course of considering and ultimately rejecting important aspects of the applicant’s claims. This was not a case in which the applicant’s claims had been discredited by “comprehensive findings of dishonesty or untruthfulness”. It accepted many aspects of his claims. In that context, it was necessary to properly consider and address the document.[26] I am satisfied that it is appropriate to draw an inference that the IAA did not consider that document.
[23] CB 251 [28].
[24] CB 249 [22].
[25] CB 253 [35].
[26] WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568, [27].
I am satisfied with respect to ground one that the Tribunal fell into jurisdictional error by failing to conduct the statutory task to conduct a review required of it under the legislation.
With respect to ground three, I am not satisfied that the IAA failed to consider an integer of the applicant’s claims with respect to mistreatment whilst in the refugee camp. I accept the submission of the Minister that references by the IAA to questioning by the CID can fairly be read as incorporating all aspects of the applicant’s treatment during that process.
With respect to ground four, I accept the submission of the applicant that the apparent reasoning of the IAA as analysed in Mr Schipp’s submission does disclose an element of illogicality. I am not satisfied that it could be categorised as being extremely illogical. I dismiss ground four.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 1 May 2020
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