Cme17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 520
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CME17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 520
File number: MLG 1210 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 30 June 2022 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether the Authority denied the applicant procedural fairness – whether the Authority constructively failed to review the decision of the first respondent – whether the Authority failed to consider discretion under s 473DC of the Migration Act 1958 (Cth) – whether the Authority actively and intellectually considered the applicant’s claims - Authority decision affected by jurisdictional error – writs issued Legislation: Migration Act 1958 (Cth), ss 5AA, 5H, 36, 473CA, 473CB, 473DC, 473DD, 473DE, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 164; [2021] FCAFC 44
Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Navoto v Minister for Home Affairs [2019] FCAFC 135
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of last submission: 19 April 2022 Date of hearing: 5 April 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr E Taylor Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1210 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CME17
Applicant
AND: IMMIGRATION ASSESSMENT AUTHORITY
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
30 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.A writ of certiorari issue to quash the decision made by the second respondent on 16 May 2017.
3.A writ of mandamus issue directed to the second respondent requiring it to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 16 May 2017 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
I have found that the Authority made a jurisdictional error by failing to consider in an active intellectual manner the applicant’s claim to fear harm on account of his Tamil ethnicity. I therefore issue writs of certiorari to quash the Authority decision and mandamus to require the Authority to reconsider the matter according to law.
BACKGROUND
The applicant is a citizen of Sri Lanka who entered Australia at Cocos (Keeling) Islands in April 2013 without a visa. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 7 June 2016 the applicant lodged an application for a Safe Haven Enterprise visa, which is a type of protection visa.
On 13 January 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 28 February 2017 a delegate of the Minister made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority in accordance with s 473CA of the Migration Act.
On 16 May 2017 the Authority affirmed the delegate’s decision.
AUTHORITY DECISION
The Authority accepted the applicant’s identity as claimed and accepted that he was a Sri Lankan Tamil.
The Authority accepted the applicant’s claim that he did not receive schooling in Sri Lanka and that when he was young, his mother held concerns for his safety. The Authority also accepted that the civil war had impacted to a degree on the applicant’s opportunity to attend school, but considered that his family’s financial circumstances also contributed to him working from a young age. The Authority was satisfied that the applicant had the opportunity to attend school after the war ended but instead chose to work and play.
The Authority acknowledged that the applicant’s lack of education would restrict his employment opportunities, and that the type of work available to him may not involve the income he would like. The Authority did not accept that the applicant would be unable to access opportunities for further educational training on return to Sri Lanka and was not satisfied that the applicant would face discrimination, harassment or hardship amounting to serious harm in relation to, or as a result of, not having attended school.
The Authority accepted that the applicant’s father and uncles were rounded up along with other villagers and that they were suspected of providing support to the Liberation Tigers of Tamil Eelam (LTTE) on the basis of their Tamil ethnicity. The Authority was satisfied that, while the treatment amounted to harassment and was discriminatory, it did not indicate that the applicant’s father and uncles were considered by the authorities to hold a profile of being involved with the LTTE. The Authority did not accept the applicant’s claim that his uncle had been summoned to the Criminal Investigation Department (CID) to attend an interview, and considered the applicant’s claim that his uncle had been visited by the CID or people in white vans to be an assumption he held. The Authority also considered that it was implausible that the CID would not have arrested and detained the applicant’s uncle for questioning if they had considered him to be a person of significant interest.
The Authority acknowledged the claim that the applicant’s brother was arrested by the police and army, interrogated and beaten up, but noted that there was no information before it about the circumstances of the brother’s encounters with the authorities or the period during which it had occurred. The Authority was not satisfied that the applicant’s brother’s difficulties were linked to the applicant’s claims for protection and they did not indicate that the applicant was a person of interest to the authorities. Having regard to the nature of the applicant’s relative’s encounters with the Sri Lankan army, police and CID, and the applicant’s assertion that no members of his family were LTTE members, the Authority was not satisfied that the applicant’s close relatives had ever been regarded by the authorities as being connected with the LTTE. The Authority was satisfied that at the time of the applicant’s departure from Sri Lanka he would not have been of interest to the authorities for any imputed association with the LTTE on the basis of his familial relationships. The Authority was not satisfied that the applicant would be suspected of being an LTTE supporter due to his family’s imputed links with the LTTE on his return to Sri Lanka.
The Authority accepted that the applicant departed Sri Lanka illegally and that he would return to Sri Lanka as a failed asylum seeker and would be identified as such. The Authority took into account country information in relation to the treatment of failed asylum seekers and people suspected of breaching the Immigrants and Emigrants Act (Sri Lanka) and concluded that the applicant would not face a real chance of serious harm on the basis of being a returned asylum seeker or for his illegal departure.
The Authority assessed the applicant’s claims cumulatively in respect of his profile as a male Christian Tamil from the North Western province, imputed with LTTE association on the basis of familial relationships, who had limited education, had converted to Christianity while in Australia, and who would be a returned asylum seeker who departed the country illegally and found that the applicant’s claims did not give rise to a real chance of serious harm.
The Authority concluded that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act and that he therefore did not meet the criteria in s 36(2)(a).
In assessing the applicant’s claims against the complementary protection criteria, the Authority accepted that discrimination and harassment against Tamils still occurs, but found that this treatment would not amount to significant harm for the purposes of s 36(2A) of the Migration Act. The Authority relied on its earlier findings of fact to find that the applicant would not face a real risk of significant harm if he returned to Sri Lanka. The Authority also considered that the treatment the applicant would face as a result of his illegal departure from Sri Lanka would not amount to significant harm. The Authority concluded that the applicant did not meet the complementary protection criteria in s 36(2)(aa).
PROCEEDINGS BEFORE THIS COURT
The application to this Court was filed on 8 June 2017, within 35 days of the date of the Authority decision as required by s 477(1) of the Migration Act.
The application raises the following three grounds, reproduced without alteration:
1.The Second Respondent denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the Authority of which the applicant was not previously aware, and in the alternative the Second Respondent denied procedural fairness because the Authority's reasoning departed from the Department's reasoning, resulting in in a practical injustice to the Applicant.
2.The Second Respondent constructively failed to review the decision of the delegate, and failed to conduct a review as required under section 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.
3.I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.
On 24 January 2018 a Registrar of this Court made an Order to progress this matter to hearing. The Order required the applicant to file and serve any amended application, supplementary court book and written submissions 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submission on 22 March 2022. The Minister also filed supplementary submissions on 19 April 2022 to address an issue that I raised at the hearing of the matter on 5 April 2022.
JURISDICTIONAL ERROR
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief by this Court, the applicant must establish that the Authority decision is affected by jurisdictional error. The Authority will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said at [14] that if the decision-maker:
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The examples of jurisdictional error set out in Craig are not exhaustive: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [81]. There might be jurisdictional error in an Authority decision if the Authority fails to conduct the review in accordance with the provisions in Division 3 of Part 7AA of the Migration Act, or if the Authority fails to exercise its discretionary powers in those provisions reasonably: see, for example, Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 (Plaintiff M174) at [21]; and ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3].
To amount to a jurisdictional error, any error by the Authority must be material, in the sense that the error could realistically have deprived the applicant of the possibility of a successful outcome: SZMTA at [3], [45].
ISSUES RAISED BY THE APPLICANT AT THE HEARING
At the hearing the applicant expressed concerns about his lack of representation by a lawyer and indicated that he did not understand the Court process. The applicant indicated that he had taken some steps to try and find a lawyer but could not find someone to assist and did not pursue it. As I explained to the applicant at the hearing, an applicant has no entitlement to a lawyer in a proceeding for judicial review of a migration decision. Instead, the Court endeavoured to make the hearing process as simple as reasonably practicable for the applicant.
The applicant also indicated that he did not understand the Authority’s reasons for decision. Before hearing submissions from the applicant, the Court requested that Mr Taylor, who was appearing on behalf of the Minister, summarise the Authority’s decision so that the applicant could understand why the Authority was not satisfied that he met the criteria for a protection visa. Mr Taylor summarised the Authority decision and I am satisfied that the summary was comprehensive and accurate.
In circumstances where the applicant is self-represented, I gave him an opportunity at the hearing to explain to the Court the grounds raised in his application. This is consistent with the approach in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9], where Colvin J confirmed that it is usually appropriate to give self-represented applicants in protection visa matters an opportunity to explain orally the matters that are said to give rise to their review grounds.
The applicant did not expressly address the grounds raised in his application. When invited to tell the Court what the Authority did wrong, the applicant said that the Authority concluded that he and his family did not have links to the LTTE. The applicant implied that this was wrong and told the Court that the reason his uncle was taken away was because the Sri Lankan authorities suspected that he had links to the LTTE.
After Mr Taylor made submissions on behalf of the Minister, including providing a summary of the Minister’s written submissions, the applicant indicated in reply submissions that he has lived in Australia from the age of 16 and is not familiar with how things are in Sri Lanka and would like to continue living here. He said that he is scared and does not know what else to say or how to present things.
I have taken into account the submissions made by the applicant at the hearing, and I have remained cognisant of the difficulties that this applicant, and other self-represented applicants, face in representing themselves before the Court in migration proceedings.
I am satisfied that nothing raised by the applicant at the hearing establishes jurisdictional error in the Authority decision. The applicant’s assertion that the Authority was wrong to find that his uncle was not suspected of involvement with the LTTE is a simple expression of disagreement with a finding of the Authority. This, of itself, does not establish jurisdictional error.
The Authority gave a logical and plausible justification for its lack of satisfaction that the applicant’s family members, including his father, uncles and brother, were suspected of involvement with the LTTE. Based on the reasons of the Authority, which are summarised above, I am satisfied that the Authority’s finding that it was not satisfied that the applicant’s uncles, father or brother were suspected of involvement with the LTTE was open to the Authority on the evidence before it.
GROUND 1
The error alleged in ground 1 is that the Authority denied the applicant procedural fairness by failing to alert him to new issues arising before the Authority, or alternatively because the Authority departed from the delegate’s reasoning and this resulted in practical unfairness to the applicant.
The Authority’s procedural fairness obligations are set out in Division 3 of Part 7AA of the Migration Act. Section 473DA(1) of the Migration Act provides that Division 3 of Part 7AA, together with two other provisions that have no application to the present case, ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority’. This exhaustive statement of the natural justice hearing rule leaves no room for the operation of common law rules of procedural fairness in relation to reviews conducted by the Authority: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 (BVD17) at [31], [33].
Section 473DB(1) of the Migration Act provides that, subject to Part 7AA, the Authority is to review a fast track reviewable decision by considering the review material provided to it in accordance with s 473CB, ‘without accepting or requesting new information’ and ‘without interviewing the referred applicant’. Thus, a review conducted by the Authority will ordinarily be done ‘on the papers’.
There is an obligation imposed on the Authority by s 473DE of the Migration Act to give to an applicant, and invite the applicant to comment on, clear particulars of any new information which is to be considered by the Authority pursuant to s 473DD and which would be the reason or part of the reason for affirming the fast track reviewable decision. However, in the present case, the Authority did not consider any new information that was not before the delegate and the obligation in s 473DE did not arise.
There is nothing in Part 7AA which imposes a procedural fairness obligation on the Authority to alert the applicant to new issues that arise before the Authority or to any proposed departure from the delegate’s process of reasoning. The Full Court in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 (DGZ16) confirmed at [72] and [76] that the ‘Authority is not required to inform [an applicant] of specific reservations about the [applicant’s] case and to provide the [applicant] with an opportunity to respond’ and that it is ‘open to the Authority to disagree with the delegate’s evaluation of the material without providing the [applicant] an opportunity to respond’.
Ground 1 is not established.
GROUND 2
Ground 2 alleges that the Authority constructively failed to review the delegate’s decision by failing to inform the applicant of issues arising on the review and failing to consider the exercise of its discretion in s 473DC of the Migration Act to get new information from the applicant.
No new issues arose on the Authority’s review of this matter that were not before the delegate. The delegate decision should have served to put the applicant on notice of the relevant issues to the extent that he was not already aware of the issues from the way in which he advanced his claims and from the questions asked by the delegate at the protection visa interview. It follows that there is no jurisdiction error resulting from any failure by the Authority to put the applicant on notice of the issues arising in the review.
Section 473DC(1) confers on the Authority a discretion to get new information that was not before the delegate and that the Authority considers may be relevant to the review. The Authority’s discretionary powers are conferred on it subject to the implied condition that they be exercised reasonably: Plaintiff M174 at [21]; BVD17 at [15]; ABT17 at [3].
In the present case, the Authority did not exercise its discretion to get new information from the applicant. However, there was nothing unreasonable about this. There were no new issues that arose in the review by the Authority that had not already been considered by the applicant. There was no additional information required by the Authority to enable it to conduct the review. There was no obligation on the Authority to inform the applicant of any specific reservations that it had about his case and to invite him to respond: DGZ16 at [72].
The Minister’s lawyer identified one factual assertion made by the applicant in advancing his claims that was accepted by the delegate but rejected by the Authority. The delegate accepted, based on the applicant’s uncle’s employment and on country information, that it was plausible that the applicant’s uncle was under surveillance by the Sri Lankan authorities and feared being taken to the CID’s fourth floor interrogation wing in Colombo by authorities in a white van. The Authority did not make any finding that it was plausible that the applicant’s uncle was under surveillance. Both the delegate and the Authority rejected the applicant’s claim that his uncle had been summoned to attend the CID office and that he would face any harm as a result of any interest that the authorities may have had in his uncle. The Authority’s relevant finding is set out at [26] of its reasons, where it said:
I also consider it implausible that had the CID considered the applicant’s uncle to have been a person of significant interest to them, they would not have arrested and detained him for questioning. I note that the uncle continued to return to his home and to undertake his work during this time, I consider it feasible that despite his efforts to remain unnoticed during the evenings his movements would have been able to be ascertained. While I accept that the uncle was taking steps to avoid encounters with the authorities, I do not accept that he had been summonsed by the CID to attend for interview and failed to respond. Given my concerns about the identity of the people who knocked on the uncle’s door at night, that the uncle continued to reside and work in his home area, and he was never arrested and detained for questioning by the CID, I am satisfied that despite the uncle’s fears, he was not of interest to the authorities for imputed LTTE involvement.
The High Court held in ABT17 that jurisdictional error may arise if, without good reason, the Authority rejects an applicant’s claims based wholly or substantially on an oral account given by the applicant in an audio-recorded interview, which the delegate accepted, without first inviting the applicant to attend an interview to assess for itself the applicant’s demeanour: see ABT17 at [25]. The Minister submitted that the present case is distinguishable because nothing turns on demeanour in the present case. I accept this submission. The Authority’s reasons for finding that the applicant’s uncle was not of any significant interest to the Sri Lankan authorities was based on the implausibility of the applicant’s claim. It was not based wholly or substantially on any oral account given by the applicant during the interview with the delegate.
Ground 2 does not establish jurisdictional error.
GROUND 3
Ground 3 is simply a statement that the applicant had applied for legal aid. It does not allege any jurisdictional error and is not a proper ground of application.
ISSUES RAISED BY THE COURT AT THE HEARING
In MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 the Federal Court said at [100] that, in dealing with self-represented litigants in migration proceedings, the judge can ‘make the process as fair as possible and then … do her or his best to be astute and alert to the possibility of legal error in the tribunal’s decision when considering the material before her or him, and be prepared to raise any such possibilities with the Minister’s legal representatives.’
With this in mind, at the hearing of this matter I raised with the Minister’s lawyer some concerns I had about whether the applicant had made a claim to face harm on account of his Tamil ethnicity, and if so, whether the Authority had addressed that claim. I gave both parties an opportunity to file written submissions addressing this issue or, in the applicant’s case, to request a further hearing to address this issue if he wished to respond and was unable to do so in writing. The Minister provided further written submissions and the applicant has not filed written submissions, nor has he requested a further oral hearing.
The Minister submitted that the applicant’s claims referring to his ethnicity were advanced as part of his cumulative profile as a person with imputed anti-government and pro-LTTE views due to his familial links and as a failed asylum seeker, and were considered as such by the Authority. The Minister submitted that, based on how the applicant’s claims were advanced, there was no obligation on the Authority to assess, on a standalone basis, whether the applicant would face harm as a result of his Tamil ethnicity.
The Minister submitted that even if there was a claim raised by the applicant at the protection visa interview that his mother had warned him against returning due to continued persecution of ‘local Tamils’ by the Sri Lankan authorities, the Authority was not obliged to refer to every piece of evidence or give a line by line refutation of the evidence. Further, whether the Authority failed to consider a contention that an applicant fears persecution for a particular reason is a matter of substance rather than form and an inference that the Authority failed to consider an issue should not be too readily drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.
The Minister further submitted that even if, contrary to his earlier submissions, the Authority was required to consider the applicant’s ethnicity as a standalone claim, any failure to do so would not be material because, in circumstances where the Authority comprehensively considered and rejected claims which were inextricably linked to his Tamil ethnicity, there is no realistic possibility that the Authority would have come to a different conclusion if it had considered the applicant’s Tamil ethnicity as a standalone claim.
For the following reasons, I find that the applicant raised a claim to fear harm on account of his Tamil ethnicity, the Authority did not actively and intellectually consider that claim, and its failure to do so was material.
The Authority was required to consider the claims expressly articulated by the applicant and any claims which were not expressly articulated but which clearly emerged on the materials before the Authority based on established facts: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55], [68]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]. Any consideration of the claims had to amount to active intellectual engagement: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 (Carrascalao) at [43]-[46]; Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [37]. The Full Court said in Carrascalao at [43]-[45] and [47]:
43.It is also important to note that, at 462 [of Tickner v Chapman [(1995) 57 FCR 451; [1995] FCA 1726], Black CJ offered the following meaning of the word “consider” which, in our view, is also applicable when there is a legal obligation to consider something, including the individual merits of a particular case (emphasis added):
Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
44.As is evident from the extracts above, both Black CJ and Kiefel J took a similar view of the meaning of the word “consider” in Tickner v Chapman. Although their Honours used different language in explaining the meaning of the word “consider” in that context, the common denominator is that the decision-maker must engage in an active intellectual process in giving consideration to the relevant matters or criteria.
45.Subsequent cases have endorsed the principle that when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria (Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140 at [47]–[54] per Lindgren, Rares and Foster JJ; SZVVR v Minister for Immigration & Border Protection [2016] FCA 1364 at [24]–[26] per Collier J; Telstra Corporation Ltd v Australian Competition and Consumer Commission [2017] FCA 316(Telstra v ACCC) at [62] and [71] per Foster J; Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 (Khadgi) at [57] per Stone, Foster and Nicholas JJ; AVU15 v Minister for Immigration & Border Protection [2017] FCA 608 at [10]–[11] per Bromberg J). This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62]).
…
47.…Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist his decision-making, as well as other matters which arise from the relevant statutory context. We will discuss some of those statutory indicators shortly.
It is with these principles in mind that I have assessed the Authority’s reasons. I am also mindful that the determination of whether the Authority has given active intellectual consideration to a claim will frequently be a matter of impression reached in light of all the circumstances of the case: Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89].
I acknowledge, as the Minister has submitted, that the applicant’s ethnicity formed part of his more specific claims for protection. However, in my view, the applicant’s claim to fear harm on the basis of his ethnicity was broader than simply being a component of his other more specific claims and should have been addressed by the Authority as a separate claim. The relevant parts of the applicant’s claims in this regard include (emphasis added):
(a)the following parts of his statement dated 30 May 2016:
18.As far as I am aware my father was not a member of the LTTE but I know Tamils were always being rounded up on suspicion of their connections or their actual membership.
...
25.As there were a lot of Tamils in Vavuniya there were many problems…
…
27.My uncle had a lot of problems with Sri Lankan authorities as a suspected LTTE member. He was often summonsed to the 4th floor. He would never go though in fear he would not be allowed to leave. The Sinhalese have always suspected Tamils. The Sinhalese believe it is their country and Tamils don’t belong there.
28.There were Sinhalese in Darwin detention centre who used to tell me Sri Lanka belonged to them. I always fought with them about this.
…
30.[My mother] said because I was an uneducated Tamil it was going to be too difficult to stay in Sri Lanka and build a safe and secure life.
…
40.The Sri Lankan Government does not help Tamils who were affected by the war.
(b)in the delegate’s notes from the protection visa interview, it is recorded that the applicant said:
How many times was your father arrested and detained on suspicion of being an LTTE member?
4-5 times, the same with my uncle, when there was suspicion, then they were arrested and taken away. Because we are Tamil they do this any time I can remember once I was going with my father and they accused him of being LTTE and he said no and they were about to hit him and they tried to do that to me too.
…
Why did your older brother get arrested and interrogated by the police and army in Puttalam where he was looking after your mother and sisters?
Because he is a Tamil and this is due to the LTTE problem the Sinhalese people are not kind to Tamil people and always accuse the Tamils as LTTE and this is why they beat and torture them, they did this to my brother, father and my mum is now also aged and she is the one who goes and looks for him and it is hard for her now…
(c)the following parts of his post-interview submission to the delegate dated 19 January 2017:
We reiterate that our client fears harm for reasons of his Tamil ethnicity and imputed anti-Government and pro-LTTE stance. …
During the interview our client indicated that his mother has warned him against returning as Sri Lankan authorities continue to persecute local Tamils.
Our client further indicates he fears he would be detained by Sri Lankan authorities immediately upon return, if forcibly returned. This is for a combination of reasons, including his illegal departure from Sri Lanka and corresponding status as a failed Tamil asylum seeker.
… Tamils who have fled the country and returned as failed asylum seekers attract suspicion based on the assumption that they fled the country after doing something wrong. Tamils returning from overseas are under surveillance and clearing the airport is no guarantee of future safety.
I consider that the above extracts show that the applicant made an express claim to face harm on account of his Tamil ethnicity. However, even if I am wrong in this conclusion, a claim to fear harm on account of his Tamil ethnicity clearly emerged on the materials before the Authority in any event.
The delegate addressed, over four paragraphs, whether the applicant would face harm as a result of being a young Tamil male in Sri Lanka. After separately considering the applicant’s profile as an imputed LTTE supported family member in Sri Lanka, the delegate then said:
The Applicant’s profile as a young Tamil male in Sri Lanka.
I acknowledge that the Applicant departed Sri Lanka as a minor and he is now nineteen years of age. The Applicant departed Sri Lanka in 2013 when he was approximately fifteen years of age, approximately four years after the end of the civil war.
I note that Tamils throughout Sri Lanka, but especially in the north and east, reported security forces regularly maintained surveillance of or harassed members of their community, especially young and middle-aged Tamil men. However, the US State Department also noted that the Sri Lankan government had made substantial progress in returning land to Tamils and in reducing the number of detainees undergoing rehabilitation. The government also implemented confidence-building measures such as replacing the military governors of the Northern and Eastern provinces with civilians. These measures indicate that the Sri Lankan government have made steps to return land to Tamils, install civilian governors and reduce rehabilitation and detention of Tamils. I note that there have been improvements in the treatment of Tamils from circa 2012 to the latest country reports of 2015 and 2016. I do not accept that the Applicant has a particular adverse profile with the Sri Lankan authorities that would lead him to face a real chance of serious harm as a potential returnee to Sri Lanka.
According to DFAT from 2017, the security situation in the north and east of Sri Lanka has improved dramatically since the end of the conflict, with greater freedom of movement and a reduction in the military’s involvement in civilian life. However, military and security forces maintain a significant presence in the Northern Province, including in Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna Districts. According to the Government of Sri Lanka, the number of personnel has reduced by approximately 30 per cent since the end of the conflict, but there may be up to 70,000 Sri Lankan Defence Force troops and up to 15,000 civilian police still stationed in the north, with most of the military confined to the Security Forces Cantonment on Jaffna Peninsula (also known as ‘High Security Zones’) or the smaller surrounding military camps. The High Security Zones occupy fertile land and are well-established, with permanent structures and well-tendered agricultural land. The Government has begun reducing High Security Zones in the Northern Province and to date over 1,000 acres of land have been released in Jaffna (not just in the High Security Zones). Military checkpoints on major roads leading to the north and east were removed in 2015 and there are no restrictions on travelling to the north and east. This information indicates that the security situation has greatly improved since the end of the civil war and that overall military numbers have decreased in Sri Lanka by 30%.
DFAT advised that crime rates across Sri Lanka vary, but are highest in Colombo District and tend to be higher in the Western Province and the Northern Province. The incidence of homicide has fallen sharply in recent years and is now comparable with other South Asian countries-UNODC estimated a murder rate of 2.9 per 100,000 in 2013. The rates of many other serious crimes, including assault and rape have either remained steady or increased slightly. On the basis that the Applicant has family support and greater capacity to move within Sri Lanka to seek work or to reside there, I do not accept that the Applicant faces a real chance of suffering serious harm as a young Tamil male in Sri Lanka, in considering the improving political and security situation as described in the country source information cited above.
The Minister has submitted that just because the delegate considered a claim, does not mean that the Authority was required to also consider that claim. This proposition is not as straightforward as the Minister’s submission suggests. In ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 164; [2021] FCAFC 44, the Full Court considered a situation where the delegate had considered an unarticulated claim that the appellant would face harm on return to Afghanistan on account of being a Shia Muslim asylum seeker from a western country, and the Authority declined to consider that claim finding that it did not clearly emerge on the materials. In that case, the Full Court said at [66]-[72]:
66.As stated above, it was common ground that the “review material” before the Authority included the delegate’s decision. We accept that was the case and note that this characterisation is consistent with the reasoning in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35] in relation to a review under Part 7AA of the Act:
[T]he 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.
67.The statutory scheme under Part 7AA of the Act expressly provides for a fast track review process, in which adverse decisions made by the Minister are automatically referred to the Authority for review by operation of s 473CA of the Act. While visa applicants are permitted to provide additional written submissions, Practice Direction 20 strictly limits those submissions to five pages. It is important to observe that those submissions supplement the material before the Authority and must be considered. The submissions do not, however, alter the Authority’s statutory obligation to consider the review material, including the claims that were dealt with by the delegate.
…
69.During the hearing, there were various references to the decision in BYR17 [v Minister for Immigration & Border Protection [2018] FCA 1324]. The appellant sought to distinguish that decision from the present circumstances on the basis that in BYR17 the claim was neither advanced by the visa applicant nor was it apparent from the material before the Authority, including the delegate’s decision. That is an important, potentially determinative, distinction between BYR17 and the present appeal.
70.The Minister maintained that BYR17 was apposite to the present appeal, in particular having regard to what was said at [51]:
However, whilst the delegate’s decision provides a starting point, the Authority is not confined to the issues that the delegate considered and nor is the Authority necessarily bound to consider all issues considered by the delegate. As the task of the Authority is to consider the application for a protection visa afresh, the Authority is not bound to consider matters determined by the delegate but which are no longer in issue. Just as new claims may be made, claims made before the delegate may be withdrawn or abandoned. The Authority’s task is to conduct a review in relation to those claims that are extant. It is not obliged to conduct a review in relation to claims that have been abandoned or which are no longer pressed by an applicant for a protection visa. The Authority need not conduct a review in relation to a case not advanced by a visa applicant: see NABE at [60] and [62] (Black CJ, French and Selway JJ) and SZTAD v Minister for Immigration & Border Protection [2014] FCA 1256 at [16] –[17] (Bromberg J).
71.In our view, it was not necessary for the appellant to expressly adopt or embrace the unarticulated claim to give rise to an obligation on the part of the Authority to review that claim. The appellant was entitled to expect that the delegate’s reasons would form part of the review material and that all issues would be appropriately considered by the Authority, given the claim clearly emerged from the circumstances and characteristics of the appellant. …
72.In our view, the delegate properly identified circumstances that might give rise to a claim for protection, though we accept that this conclusion is necessarily an evaluative judgment. It was open to the Authority to reach a view that the appellant was not entitled to protection as a failed asylum seeker returning from a western country. However, the Authority erred in not undertaking that active intellectual process in circumstances where there was nothing to suggest the unarticulated claim had been abandoned or withdrawn by the appellant.…
In the present case, the applicant’s Tamil ethnicity arose for consideration irrespective of the delegate’s decision. However, the fact that the delegate did consider the issue reinforces that it was an issue in the review and the applicant was entitled to expect that it would be considered by the Authority.
The Authority did not expressly consider the applicant’s claim to fear harm as a Tamil, or as a Tamil male, as a separate claim.
The Authority did express a conclusion in relation to its cumulative assessment of the applicant’s claims, including his Tamil ethnicity, at [43] of its reasons, where it said (emphasis added):
I have also assessed the applicant’s claims cumulatively in respect of his profile as a male Christian Tamil from the North Western province, imputed with LTTE association on the basis of familial relationships, who has limited education, has converted to Christianity while in Australia, and that he will be a returned asylum seeker who departed the country illegally. Assessing his claims cumulatively, I find they do not give rise to a real chance of serious harm.
The concern I have about this finding is that the Authority did not elsewhere in its reasons assess in its consideration of whether the applicant met the refugee criteria in s 36(2)(a) of the Migration Act the risk the applicant would face as a male Tamil. In the circumstances of this matter, I do not accept that the Authority’s finding expressed without reasons as part of a cumulative assessment of claims is sufficient to show that the Authority engaged with the applicant’s claim in relation to his Tamil ethnicity in an active intellectual manner.
In its complementary protection assessment, the Authority said at [48] and [49] (emphasis added):
48.I have accepted that discrimination and harassment against Tamils still occurs. However, country information does not indicate that discrimination and harassment manifests in a way that will arbitrarily deprive the applicant of his life or result in the death penalty being carried out against him. There is also no evidence to indicate that it will lead to the applicant facing torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Even taking into account his family’s and his own financial circumstances and his limited education and work experience, I do not accept that he will face hardship, discrimination or harassment in Sri Lanka that would amount to significant harm for the purposes of s.36(2A).
49.For the reasons already stated, I have otherwise found that there is not a real chance the applicant will face serious harm from the Sri Lankan authorities on return to Sri Lanka on the basis of his Tamil ethnicity, area of origin, religion, his familial connections, or for imputed LTTE association. As ‘real chance’ and ‘real risk’ involve the same standard, it follows that based on the same information, and for the reasons stated above, I am also satisfied that there is no real risk of significant harm on these bases if returned to Sri Lanka.
There is no assessment or discussion earlier in the Authority’s reasons where the Authority accepted that discrimination and harassment against Tamils still occurs. The only earlier reference to discrimination post-war is at [19] of the Authority’s reasons where the Authority refers to country information which indicates that the law in Sri Lanka prohibits discrimination based on race, sex, gender, disability, language or social status and the Constitution also has provisions that prohibit discrimination regarding religion, caste, political opinion and place of birth. In the same paragraph the Authority refers to a Department of Foreign Affairs and Trade assessment that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination as there are no official laws or policies that discriminate on the basis of ethnicity. The earlier reference to discrimination appears to contradict what the Authority then says at [48].
From the paragraphs extracted above, it can be seen that the Authority’s consideration of the applicant’s claims to fear harm as a Tamil amounts to two conclusions, one for the purpose of the refugee criteria and one for the purpose of the complementary protection criteria, expressed as part of a cumulative finding without any specific reasons, and a reference to a ‘finding above’ that does not appear to exist in relation to discrimination. I am not satisfied that this amounts to an active intellectual consideration of the applicant’s claims.
I do not accept the Minister’s submission that any failure to consider the applicant’s claim to fear harm on account of his Tamil ethnicity is not material. While it may seem unlikely that the Authority would have found that the applicant would face harm on account of his Tamil ethnicity, in circumstances where I have found that the Authority did not actively intellectually consider the applicant’s claim, I cannot find that there is no realistic possibility of a different outcome without trespassing into merits review. I therefore find that the Authority decision is affected by jurisdictional error.
CONCLUSION
Given my finding that there is jurisdictional error in the Authority decision, the application to this Court is successful and it is appropriate to issue writs of certiorari and mandamus.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 30 June 2022
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