CLQ17 v Minister for Immigration

[2020] FCCA 1864

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLQ17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1864

Catchwords:
MIGRATION –– Application to extend time for applying for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision made by the Immigration Assessment Authority (Authority) affirming a decision not to grant a Safe Haven Enterprise visa – whether adequate explanation given for delay in applying for remedies – whether there is any merit in grounds of substantive application – application for extension of time granted.

MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision made by the Immigration Assessment Authority (Authority) affirming a decision not to grant a Safe Haven Enterprise visa – whether Authority failed to consider country information – whether Authority failed to consider corroborative evidence – relief granted.

Legislation:

Federal Circuit Court Rules 2001 (Cth), pt.3, sch.1

Migration Act 1958 (Cth), ss.5H, 476, 477(1), 477(2)

Cases cited:

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: CLQ17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1774 of 2017

Judgment of: Judge Manousaridis

Hearing date: 27 March 2020

Date of Last Submission: 27 March 2020

Delivered at: Sydney

Delivered on: 10 July 2020

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges of Hodges Legal

Solicitors for the First Respondent: Ms S Sangha of Mills Oakley Lawyers

ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the 35 day period prescribed by s.477(1) of the Act for making an application for relief under s.476 of the Act in relation to the decision of the second respondent (Authority) made on 7 April 2017 is extended to 7 June 2017.

2. The decision of the Authority made on 7 April 2017 affirming the decision (delegate’s decision) of a delegate of the first respondent made on 26 September 2016 not to grant the applicant a Safe Haven Enterprise visa is quashed.

3. The Authority review the delegate’s decision according to law.

4. The first respondent pay the applicant’s costs set in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1774 of 2017

CLQ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 7 June 2017 the applicant, a citizen of Sri Lanka, filed an application claiming remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV). By the same application the applicant claimed an order under s.477(2) of the Act extending the 35 day period provided by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act. The applicant requires an order under s.477(2) of the Act because the Authority made its decision on 7 April 2017, and the applicant filed his application more than 35 days after the Authority made its decision.

2. At the hearing before me, Mr Hodges, who appeared for the applicant, and Ms Sangha, who appeared for the Minister, agreed that I should hear together the application under s.477(2) of the Act for an extension of time, and the substantive application on the assumption that I will make an order under s.477(2). The substantive application, and the application for an extension of time, are contained in the amended application filed on 6 February 2020. The amended application contains three grounds, but Mr Hodges informed me at the hearing that the applicant does not press ground 3.

3. I will begin by setting out the applicant’s claims for protection.

Claims for protection

1. The applicant stated his claims for protection in two statutory declarations, one dated 5 August 2013 (PV statement),[1] and one dated 26 October 2015 (SHEV statement),[2] both of which formed part of his application for a SHEV. In the PV statement the applicant claimed as follows:

   [1] CB183

   [2] CB179

   a)The applicant is a Sri Lankan citizen, a Tamil, and a Hindu. He was born in a village in the Northern Province, and has lived in a number of areas controlled by the Liberation Tigers of Tamil Eelam (LTTE).

   b)Neither the applicant nor any member of his family were members of the LTTE, although it is possible that the applicant’s father, a fisherman, may have been forced to work for the LTTE.

   c)From 2007 the LTTE made it compulsory for one person of each family over the age of 18 years to serve in the LTTE. The applicant was exempted because the LTTE’s requirement excluded persons who were studying. As the war intensified in 2008 the LTTE conscripted young males and females. The applicant’s mother hid the applicant and his sister (who was later killed) when they were displaced to a particular area.

   d)In 2010 the applicant and his family, along with many others, were captured and taken to an army camp (Camp). After his release in November 2010 the applicant was interrogated and tortured because he was a Tamil male, and also because he came from an LTTE controlled area.

   e)In 2010, while the applicant and his family were detained in the Camp, “CID/army officers” attempted to abduct the applicant’s brother in law, Mr T. After the applicant’s family screamed for help, many of the other detainees came to the rescue, and the “CID/army officers” left the camp because a government official told them that certain procedures needed to be followed if they were to take a person for questioning. The “CID/army officers” came the following day and took Mr T “according to the procedures”.

   f)Mr T did not return until approximately one year later. The applicant learnt Mr T was interrogated and tortured while he was held in a prison because authorities suspected he was a member of the LTTE.

   g)In July of 2011, however, while the applicant was cleaning fishing nets with Mr T and a few other fishermen, two army soldiers parked their motor bikes by the side of the road and came up to the applicant and Mr T. The army soldiers called out the applicant’s name and told the applicant to report to a particular army camp (Second Camp).

   h)On the same day, at “approximately 8.30am/9.00am”, the applicant went to the Second Camp. He was accused of being a LTTE cadre. He was told to confess that Mr T was a LTTE cadre. While being questioned, one of the uniformed army officers kicked the applicant’s chair with his boot, and a few soldiers began to physically assault the applicant by kicking and punching him. The applicant was told to sign a document in the Sinhalese language which the applicant was told contained a statement that the applicant was an LTTE cadre. When the applicant refused to sign, one of the soldiers struck the applicant near his spinal cord. The applicant fainted. The applicant regained consciousness at 5 am the following day, and was released at around 6 pm on that day. The applicant was told he should report to the Second Camp the following week, and also inform the Second Camp if he was to travel outside his area.

   i)As a result of the strike the applicant received near his spinal cord, the applicant had to undergo surgery at a particular hospital because the area at which the applicant was struck “became a blood clot which became hard”.

   j)The applicant did not report to the Second Camp as required because he was afraid; but when he tried to go out to sea to fish, the Sri Lankan Navy (SLN) refused to issue him a fishing pass; the SLN told the applicant he had to report to the Second Camp according to instructions they received.

   k)The applicant reported to the Second Camp approximately 15 days after he had been interrogated and beaten. The applicant was again interrogated, asked why he had not reported to the Second Camp as he had been required to do, and the interrogator placed his lit cigarette on the applicant’s right hand.

   l)After the incident in July 2011, Mr T was interrogated several times until the applicant fled Sri Lanka in July 2012. Several young Tamil males in the applicant’s area continue to disappear. After he arrived in Australia, the applicant learnt that soldiers had gone to his parents’ house several times in search of the applicant.

   m)The applicant claimed he feared he would be harmed if he returned to Sri Lanka because he has lived all his life in an LTTE-controlled area; since he was released he has been targeted by the authorities several times because they suspect he is linked to the LTTE; the applicant is a young Tamil male; and the applicant left Sri Lanka illegally and claimed asylum in Australia.

2. In the SHEV statement the applicant claimed as follows:

   a)In relation to his interrogation and beating in July 2011, the applicant claimed that he was allowed to leave after he regained consciousness; he was not detained overnight. The document the applicant was required, but which the applicant refused, to sign was to the effect that both the applicant and Mr T were LTTE cadres.

   b)After his release the applicant was required to report to the Second Camp every day. The applicant went to a village to hide with his sister’s husband, Mr V, and he did not report to the army. After a further 15 days the applicant tried to get a fishing pass again, but he was denied the pass because he had not reported to the army camp as he had been asked to do.

   c)After the applicant left Sri Lanka, the authorities accused the applicant’s maternal cousin of trying to make explosives from his business, and he is now in prison; and the authorities accused Mr V of having helped the applicant leave Sri Lanka.

   d)The applicant has a “life-long scar” on his spine “from the operation as a result of the torture”.

3. The applicant supported his claim for a SHEV with a number of documents. Relevant to one of the grounds on which the applicant relies is a document headed “Diagnosis Ticket” purportedly issued by a particular hospital.[3] The document is a form containing printed English and non-English words, spaces to provide information the printed words require be provided, and words handwritten in English. Next to the printed words “Date of Admission” there is written “30/09/2011”, next to the words “Date of Discharge” there is written “10/10/2011”, and next to the words “Investigations and Treatments” there is written “Condusion in ® Hib [illegible] due to assault”.

   [3] CB216-218

Authority’s reasons

1. The Authority accepted that at the end of the civil conflict the applicant surrendered to the Sri Lankan Army (SLA), was taken to a camp where he was held for two weeks and then reunited with his parents, siblings, and brother in law at the Camp;[4] in 2009 Mr T was detained in a prison under suspicion of being involved with the LTTE, but was released after a judge cleared him of any such involvement;[5] most likely in 2010 the applicant and his family were released from the Camp, resided in a particular area in Jaffna District; when released from prison, Mr T joined the applicant’s family; and in 2011 the applicant and his family returned to their home.[6]

   [4] CB448, [14]

   [5] CB448, [15]

   [6] CB448, [16]

2. The Authority, however, found the applicant’s evidence of his interactions with the SLA between July 2011 and July 2012 to be unconvincing.[7] The Authority principally relied on what it considered to be significant inconsistencies in the applicant’s evidence between the PV statement, the SHEV statement; and the evidence the applicant gave to the delegate; and that the evidence the applicant had given at his arrival interview on 11 October 2012, and at his entry interview on 25 January 2013, do not support a number of the claims made in the SHEV application.[8] In particular, the Authority relied on the following:

   a)The applicant’s accounts of the contents of the document he claimed he was required to sign during his interrogation of July 2011 are inconsistent; in the PV statement the applicant claimed the document stated the applicant was a LTTE cadre, but in the SHEV statement the applicant said the document he was required to signed stated he and Mr T were LTTE cadres.[9]

   b)The applicant gave inconsistent evidence about the length of his detention in the Second Camp. In the PV statement the applicant claimed he had been held overnight, while in the SHEV statement he claimed he had left after he regained consciousness.[10]

   c)The applicant gave inconsistent evidence about where he went after he was interrogated at the Second Camp. In the SHEV statement the applicant said he hid in Mr V’s home, while in the arrival interview the applicant said he went to his brother in law’s sister’s cousin’s house.[11]

   d)The applicant gave inconsistent evidence about when he was required to report, and when he did report, to the SLA after his interrogation in July 2011. In the PV statement the applicant said he was told to report to the Second Camp the following week; in the SHEV statement the applicant said he was told to report to the Second Camp every day; before the delegate, the applicant said “apart for a short period when he was hospitalised in September 2011” he reported to the Second Camp every day for a 12 month period until he departed Sri Lanka; and in his arrival interview the applicant said he was required to report about three or four times.[12]

   e)The applicant gave inconsistent evidence about whether he was mistreated by the SLA on each day he reported.[13]

   f)The applicant gave inconsistent evidence about when he was burned with a lit cigarette.[14]

   g)In his arrival interview the applicant claimed he was detained in a SLA camp from September 2009 until the end of 2010 under suspicion of being involved with the LTTE, but the applicant did not make this claim in his SHEV application.[15]

   h)In his entry interview the applicant claimed he had been arrested by the SLA because he was in a war zone in the later part of the conflict, but the applicant did not make this claim in his SHEV application.[16]

   [7] CB450, [24]

   [8] CB450, [24]

   [9] CB450, [25]

   [10] CB450, [26]

   [11] CB450, [27]

   [12] CB450, [28]

   [13] CB450-451, [29]

   [14] CB451, [30]

   [15] CB451, [31]

   [16] CB451, [32]

3. In the light of these inconsistencies, the Authority made the following findings:[17]

   When considered cumulatively, I consider the above inconsistencies to be significant, and undermine the applicant’s credibility. I conclude that the applicant was not recalling a genuine personal experience pertaining to the claimed events following his return to . . . in 2011. As such, I reject the applicant’s claims that he came to the adverse attention of the SLA on account of his imputed LTTE links or on account of any familial links. As I am not satisfied that the applicant had an adverse profile with the SLA, I also reject his associated claim that since arriving in Australia, army soldiers have gone to his parents’ house in search of him.

   [17] CB451, [33]

4. Although the Authority accepted Mr T came to the adverse attention of the authorities, the Authority found the applicant’s evidence in relation to the events surrounding Mr T after his release in 2010 to be unconvincing.[18] The Authority relied on what it found to be inconsistent evidence the applicant gave about how Mr T left Sri Lanka, and the Authority’s “previous credibility concerns in relation to the applicant’s other claims”.[19]

   [18] CB452, [37]

   [19] CB452, [37]

5. After considering and rejecting two other claims the applicant made, the Authority referred to the applicant’s claiming in the SHEV statement that he had a scar on his spine following an operation after his claimed assault in July 2011; the applicant also stating he had two faint scars on his right hand from cigarette burns; the applicant’s advising the delegate that he sought medical treatment in September 2011; and the applicant’s submitting in “support of the treatment he received” a “document titled ‘diagnosis ticket’ which evidences he was admitted to Base Hospital . . . for treatment from 30 September 2011 until 10 October 2011”. The Authority said that country information indicates that scarring has been a risk factor for returnees, but country information does not indicate that body scars alone are now likely to attract the attention of the authorities. The Authority concluded:[20]

   While I accept the applicant has scarring as claimed, in his circumstances, I am not satisfied he will be at risk of being detained and stripped upon his return to Sri Lanka. Nor am I satisfied that the applicant is at risk of coming to the adverse attention of the authorities on his return due [to] faint scars on his right hand.

   [20] CB453, [40]

6. The Authority then considered whether the applicant faced a real chance of harm because he is a Tamil, or because he may be imputed with a LTTE profile, or because of his former place of residence, or his age, or because he left Sri Lanka illegally, and was not satisfied the applicant would face such harm. The Authority, therefore, was not satisfied the applicant was a “refugee” within the meaning of s.5H of the Act. Further, relying on findings it had made in arriving at that conclusion, and additional findings, the Authority found there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35 day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[21]

   [21] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, at [47]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b)Whether there is any prejudice to the Minister;

   (c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

3. The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[22] Further:[23]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [22] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63] (references omitted)

   [23] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62] (references omitted)

Whether order under s.477(2) should be made

1. The applicant’s explanation for the delay is that he had informed the Department by email that his contact details had changed. The applicant also says that on 28 November 2016 he telephoned the Authority and informed an officer of his new contact details, and he provided an email address, stating that he preferred to be contacted by email. According to a file note the officer from the Authority made of the conversation, the officer informed the applicant that the officer “would update this information on our case management system”, and the officer requested the applicant “provide IAA a written record of his address change and preferred method of contact”. The applicant said he would do that.[24] The applicant, however, did not provide to the Authority a written record of his address and preferred method of contact. That means that the Authority’s decision was not sent to the email address the applicant provided to the Authority by telephone on 28 November 2016.

   [24] CB440

2. The applicant may be criticised for not doing what he said he would do, that is, send to the Authority in writing his new contact details. The officer’s file note, however, suggests the officer said that he would update “this information” on the Authority’s case management system. It is open to me to infer, and I do infer, that the applicant understood this to mean that the Authority would update that system based on the information the applicant gave to the officer in the telephone conversation on 28 November 2016. I am satisfied, therefore, that the applicant has given an adequate explanation for delay. I am also satisfied that the period of delay – 29 days – does not by itself constitute a significant factor against my exercising my discretion in favour of making an order under s.477(2) of the Act extending time.

3. That, then, leaves the merits of grounds 1 and 2 of the proposed amended application. As will be apparent in the remainder of these reasons, ground 1 of the amended application does not have sufficient merit to warrant an order extending time. I am satisfied, however, that ground 2 does have sufficient merit.

4. Taking into account these matters, I am satisfied it is necessary in the interests of the administration of justice that an order be made under s.477(2) extending the time to 7 June 2016 by which the applicant may apply for remedies under s.476 of the Act in relation to the Authority’s decision. I will make an order under s.477(2) of the Act to this effect.

Ground 1 of amended application

1. Ground 1 is as follows:

   The Authority failed to consider “a number of incidents of prison riots resulting in deaths” when conducting its assessment of the applicant’s claims against the Complementary protection assessment criterion.

   Particulars

   1. The Authority accepted that the applicant would be “detained on remand for a number of days pending bail” [CB 456, 58].

   2. The Authority accepted that “returnees may be held for a short duration in prison while waiting to appear before a magistrate or while on remand awaiting bail” [CB 456, 59].

   3. The Authority accepted that “the Applicant may be subjected to poor prison conditions during his detention…” due to “overcrowding, poor sanitation and lack of resources” [CB 456, 59]

   4. The Authority relied on DFAT findings [CB 454, 47].

   5. Paragraph 4.13 of the “DFAT Country Information Report Sri Lanka” dated 18 December 2015 states

   “4.13 In addition to deaths in custody, there have been a number of incidents of prison riots (unrelated incidents in different prisons), resulting in deaths. For example, following a search of the Welikada Prison in Colombo in November 2012, a riot resulted in the deaths of 27 prisoners”

   6. The Authority failed therefore to consider the real risk of significant harm the applicant may face due to incidents of prison riots.

   7. The Authority’s decision is affected with jurisdictional error for this reason.

2. Mr Hodges made no oral submissions in relation to this ground; he said the applicant relied on his written submissions. The applicant’s written submissions repeat the substance of the ground,[25] but in addition refers to a submission the applicant’s representative made to the delegate that “in the particular circumstances of this applicant, high levels of generalised violence in Sri Lanka are relevant to an assessment of the risk of significant harm”.[26] The applicant submits the Authority did not take into account the risk of violence or death to the applicant while in custody or remand.[27]

   [25] Applicant’s outline of submissions, [20], [21]

   [26] Applicant’s outline of submissions, [22], referring to CB377, [6.12]

   [27] Applicant’s outline of submissions, [22]

3. Ground 1 has no merit. It is true the Authority did not in its reasons specifically refer to paragraph 4.13 of the DFAT Country Information Report. That, however, affords no reasonable basis for inferring the Authority did not consider that paragraph. The Authority in its reasons says it considered country information which included the DFAT Country Information Report.

Ground 2 of amended application

1. Ground 2 of the amended application is as follows:

   The Authority’s findings that the applicant did not come to the adverse attention of the SLA on account of his imputed LTTE links or on account of any familial links is affected with jurisdictional error

   Particulars

   1.The Authority stated at [CB451, 33] “When considered cumulatively, I consider the above inconsistencies to be significant, and undermine the applicant’s credibility.”

   2.The Applicant claimed that “army officers kicked and punched him” [CB449, 18] and that he was “struck with a gun on his spinal cord…” [CB449, 18].

   3.Before the Authority there was an important document that corroborated the applicant’s claim that he was assaulted by the SLA [CB 15].

   a.This document being a “DIAGNOSIS TICKET” issued by the “BASE HOSPITAL . . . .”

   4.The Applicant stated in his PV statement at [CB 185, 14] “As I was refusing to sign one of the army soldiers struck me near my spinal cord (and as a result I had to undergo surgery at the . . . hospital …”

   5.The Authority failed to give any weight and or consider this important document that corroborates the Applicant’s claims.

2. In his written submissions the applicant submits that in finding “unconvincing” the applicant’s evidence about his claimed interactions with the SLA the Authority did not mention the “diagnosis ticket”.[28] The applicant further submits that the “diagnosis ticket” was material evidence. The Minister, on the other hand, submits the Authority did refer to the “diagnosis ticket”; it did not expressly accept the document corroborated the applicant’s claimed interactions with the SLA; and, while the Authority accepted the applicant had scarring, the Authority found that this would not attract adverse attention from the authorities in Sri Lanka.[29]

   [28] Applicant’s outline of submissions, [25]

   [29] First Respondent’s Submissions, [45]

3. It is true, as the Minister submits, that the Authority referred to the “diagnosis ticket”; but it is necessary to be clear about the purpose or purposes for which the Authority referred to the “diagnosis ticket”. The Authority referred to the “diagnosis ticket” in the context of the applicant’s claim to fear harm because of his scarring. The Authority accepted the applicant had scarring; and, given the Authority referred to no other medical evidence, and the Minister has not suggested there was any other medical evidence before the Authority in relation to the applicant’s scarring, it is open to me to find, and I do find, that the Authority relied on the “diagnosis ticket” to find that the applicant underwent a procedure that resulted in his being scarred. Having gone that far, however, the Authority was bound to consider whether that which it accepted the “diagnosis ticket” showed, namely, scarring, was the result of that which the applicant claimed occurred, namely, an operation that was performed on the applicant because of the injuries he claimed to have suffered during his interrogation in July 2011. The Authority, however, did not undertake any such task.

4. The Authority’s obligation to consider material evidence is not discharged by the Authority simply referring to it; the Authority can only discharge its obligation if it considers whether it accepts the evidence and, if it accepts it, consider whether the Authority is satisfied the evidence, considered alone or in combination with other evidence, establishes, or does not establish, an issue in the review or a fact that is relevant to an issue in the review. In the circumstances before me, the Authority accepted the authenticity of the “diagnosis ticket”; and it relied on it to accept the applicant underwent the medical procedure identified or purportedly identified in the “diagnosis ticket”, and that this resulted in the applicant’s being scarred. The Authority, however, did not go further and consider whether the applicant had undergone the operation for the reasons he claimed, namely, to address injuries he claimed to have sustained during his interrogation in July 2011.

5. I therefore accept the applicant’s submission that the Authority did not consider the “diagnosis ticket” for the purpose of assessing the applicant’s claims that he had been detained and injured by the SLA in July 2011. The “diagnosis ticket” was sufficiently important that the Authority’s failure to consider it for this purpose materially affected the Authority’s determination of the applicant’s claim that he had been detained and tortured by the SLA. By not considering the “diagnosis ticket” for that purpose, therefore, the Authority made a jurisdictional error of the sort the Refugee Review Tribunal was found to have made in Minister for Immigration and Citizenship v SZRKT.[30]

   [30] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, at [111]

6. There is an additional ground for concluding that the Authority made a jurisdictional error; and that is irrationality. On the one hand the Authority did not accept the applicant’s claim that he had been detained and tortured by the SLA, being a claim that included the claim that, because of that torture, he suffered injuries that required him to undergo an operation which resulted in scarring. On the other hand, the Authority accepted the applicant had scarring as a result of an operation in circumstances where the only evidence that was before the Authority that was capable of explaining why the applicant had an operation that resulted in scarring was his sustaining injuries because of the torture the applicant claims he suffered at the hands of the SLA. Given the facts the Authority accepted, and the evidence that was before it, it was not rationally open to the Authority, on the one hand, not to accept the applicant suffered injuries because of torture inflicted on him by the SLA which required him to have an operation that resulted in scarring; and, on the other hand, to accept the applicant did have an operation that resulted in scarring.

7. For these reasons, ground 2 succeeds.

Disposition

1. In addition to making an order under s.477(2) of the Act extending time, I propose to order that the Authority’s decision be set aside, and that the Authority consider the application that was referred to it according to law.

2. As for costs, the parties agreed that costs should follow the event. Mr Hodges informed me that if the applicant were to succeed he would also seek an order that the applicant’s costs be set in the amount of $7,206, being the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as those rules applied on 7 June 2017, being the day on which the applicant commenced this proceeding. I will therefore also order that the Minister pay the applicant’s costs set in the amount of $7,206.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 10 July 2020