CPM17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 42
•20 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CPM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 42
File number(s): ADG 180 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 20 January 2025 Catchwords: MIGRATION – Judicial review application – Immigration Assessment Authority decision - citizens of Sri Lanka – refused grant of a Safe Haven Enterprise visa – whether the Immigration Assessment Authority proceeded on the basis of a misunderstanding of, or failure to understand, the material in country information report and relevance of the material to the claims made – report concerning male sexual violence - whether Immigration Assessment Authority findings were illogical, irrational and lacked an intelligible justification in relation to death of an applicant’s friend and a bribe paid to cease harassment – whether material jurisdictional error Legislation: Migration Act 1958 (Cth) ss 36, 473CA, 473DC, 474DD, 474, 476 Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221
ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221; (2018) 159 ALD 417
BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94; (2019) 163 ALD 483
CJH16 v Minister for Immigration [2017] FCCA 2375
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) ALD 248
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150; (2020) 171 ALD 477
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SGBB v Minister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411
SZUXN v Minister for Immigration and Border Protection & Anor [2016] FCA 516; (2016) 69 AAR 210
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submission/s: 6 June 2023 Date of hearing: 6 June 2023 Place: Perth Counsel for the Applicants: Mr P Barnes Solicitor for the Applicants: MSM Legal Counsel for the First Respondent: Mr A Chan Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 180 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CPM17
First Applicant
CPN17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS THAT:
1.The originating application filed 20 May 2019, as amended by an amended originating application filed 14 January 2021, and as further amended by a further amended originating application filed 2 August 2021, be dismissed.
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 LUCEV
INTRODUCTION
Before the Court is an application for judicial review filed by the first and second applicants (“CPM17” and “CPN17” respectively, together “Applicants”) on 20 May 2019 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”), which was subsequently amended by an amended Judicial Review Application filed on 14 January 2021 and a further amended Judicial Review Application (“Further Amended Judicial Review Application”) on 2 August 2021. The Further Amended Judicial Review Application concerns a decision of the Immigration Assessment Authority (“Second Authority Decision” and “Authority” respectively) handed down on 1 May 2019 in which the Authority affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”), to refuse to grant the Applicants a Safe Haven Enterprise (Subclass 790) visa (“SHE Visa”).
The materials before the Court include the following:
(a)a Court Book (“CB”) totalling 832 pages;
(b)the affidavit of CPM17 sworn 20 May 2019 which annexes the Second Authority Decision;
(c)the affidavit of Alexander Pok-Man Chan affirmed 1 February 2021 (“Chan Affidavit”);
(d)the Applicants’ written submissions filed 28 April 2023 (Applicants’ Submissions);
(e)the Minister’s written submissions filed 16 May 2023 (Minister’s Submissions”); and
(f)the transcript of the hearing in this Court on 6 June 2023 (“Transcript”).
All references to the Migration Act in these Reasons for Judgment are to the provisions therein as they were at the time of the Second Authority Decision.
PROCEDURAL BACKGROUND
The relevant procedural background to the matter is as follows:
(a)the Applicants are citizens of Sri Lanka, ethnically Tamils by ethnicity and of the Hindu religion: CB 18, 53, and 55;
(b)the Applicants met in June 2007 and have lived together since September 2009: CB 46 at [10], and are now in a de facto relationship;
(c)on 13 October 2012 the Applicants departed Sri Lanka and arrived in Australia as unauthorised maritime arrivals on 28 October 2012: CB 150;
(d)the Applicants were held in immigration detention in various locations before their release in February 2014;
(e)the Applicants’ applied for a SHE Visa on 16 August 2016: CB 5;
(f)on 19 December 2016 the Delegate’s Decision to refuse to grant the Applicants the SHE Visa was made: CB 147;
(g)pursuant to s 473CA of the Migration Act the Delegate’s Decision was referred to the Authority for review: CB 188;
(h)on 24 May 2017 the Authority affirmed the Delegate’s Decision to refuse to grant the Applicants the SHE Visa (“First Authority Decision”): CB 351;
(i)the Applicants applied to this Court (then styled the Federal Circuit Court of Australia) for judicial review of the First Authority Decision and on 27 March 2019 this Court (differently constituted) quashed the First Authority Decision, and by consent remitted the matter to the Authority to review anew the SHE Visa application according to law: CB 373; and
(j)in the Second Authority Decision on 1 May 2019 the Authority affirmed the Delegate’s Decision to refuse to grant the Applicants the SHE Visa: CB 802 and 828.
PROTECTION CLAIMS
As identified in the Second Authority Decision, the Applicants’ protection claims (with deletions and minor edits to protect the identity of the Applicants) are as follows:
(a)for CPM17 at CB 810-812 at [29]:
•The first applicant is a Sri Lankan citizen of Tamil ethnicity and an adherent of the Hindu faith. He was born in … 1971 in …, in North-western Province of Sri Lanka. Soon after his birth, his family moved to the … district where he spent his youth. His father died in 1981. In 1990, some of his family went to live in India while he moved to … District in the Northern Province where he lived thereafter. He was in a de facto relationship with the second applicant.
•Due to the civil war, there were many difficulties in …. There was a strong military presence in the area he lived, and Tamils were routinely harassed and suspected of supporting the LTTE. He was interrogated and beaten on a number of occasions during this period.
•The applicant’s friend and neighbour (F1) was shot and killed … [in] 2007. He [F1] was suspected of links to the Liberation Tigers of Tamil Elam (LTTE). The applicant believes he was killed for this reason. The applicant helped to arrange his funeral.
•Later the applicant was questioned by the Sri Lankan authorities about his own links to F1 and his involvement with the LTTE. [In] … 2008, he was required to attend a local army camp for questioning. He was accused of being an LTTE supporter and was threatened with death, like F1. He was required to report to the camp weekly thereafter.
•[Three to four months later] … four men visited his home while he, the second applicant and his mother were present. Two men were wearing Army uniforms and two of the men were in civilian attire. One of the men was carrying a pistol. Upon seeing the weapon, the applicant ran away, fearing he would be shot. He hid at a friend’s home.
•He and the second applicant feared harm from the Sri Lankan Army (SLA). [The next day] …, they sought assistance from the Sri Lankan Human Rights Commission (SLHRC). The SLHRC referred him to the International Committee of the Red Cross (ICRC), who subsequently referred them back to the SLHRC. The SLHRC advised them they could not offer him protection, and took him to local police where he and the second applicant asked to be placed in protective custody for his own protection. He and the second applicant waited in the police station for a day, and where then taken before a court, where they petitioned a magistrate to be placed into protective custody.
•The magistrate accepted that the applicants were fearful and they entered protective custody. Many other fearful persons were had also requested protection at this time. The applicants’ and other protected persons were separated and sent to different locations separated by gender. Males where housed in the … prison, and females were housed in another camp.
•Whilst in protective custody, the applicant was required to attend court every fortnight to affirm that he wished to stay in protective custody. While in custody, the SLA visited his mother and told her that he should stop voicing complaints about the army.
•He stayed in protective custody at the prison until … 2009 when he decided to return home (applicant 2 having previously decided to depart … [the previous month]). On the day of his release, he paid a 25,000 Sri Lankan rupee bribe to the army in order to ensure his safety. He was released into the custody of the Sri Lankan Police Criminal Investigation Division (CID) who subsequently took him to a nearby army base where he was interrogated. He was again questioned about his links to the LTTE. He signed documents in English which he describes as a confession for possession of weapons, though he was unable to read them. He was held overnight. He was released, but advised that he would be required to report to the Army when requested.
•[Later that or the next year] … he approached the Australian and Swiss Embassies to enquire about seeking asylum. He subsequently submitted an application for asylum to the Swiss embassy, and was interviewed in Colombo. He did not proceed with an application for protection from Australia at this time. Around this time, he applied for and obtained a genuine Sri Lankan Passport in order to facilitate his travel to Switzerland.
•The SLA visited his home and required him to report. This happened on two or three occasions. On each occasion, he would be asked about his LTTE connections.
•He departed Sri Lanka by boat in 2012 before finding out whether he had obtained asylum in Switzerland. He travelled to Australia.
•The applicant fears that if returned to Sri Lanka he would be of ongoing interest to the Sri Lankan Government, he believes he would be imputed as a supporter of the LTTE and would be harmed upon return.
•In 2014, some of the applicants’ details were released by the department during a Data breach. He believes that the Sri Lankan Government would know of his claims to asylum in this country and would infer that he had made claims against the Government. He fears he would be imputed with anti-regime political opinion.
•He fears that his illegal departure and his claim of asylum in this country, would also lead him to be imputed with anti-regime political opinion. He fears harm on this basis.
(b)for CPN17 at CB 812 at [30]:
•The second applicant is a Sri Lankan citizen of Tamil ethnicity and an adherent of the Hindu faith. She was born in … 1983 in … District of the Eastern Province of Sri Lanka. In 1990, she travelled to India and lived as a refugee. She returned to Sri Lanka in 2007. She moved to …, with members of her extended family.
•When she arrived in Sri Lanka, she registered with the Sri Lankan Government. She was told to report to an SLA camp. She was interviewed on camera and [w]as questioned about whether she had links to the LTTE. She was asked to attend further interviews on five to six occasions. She feared she would suffer from sexual harassment or abuse on these occasions since there were no other women present.
•After the four men visited, she and the first applicant went to the SLHRC for protection. Like the first applicant, she was subsequently placed in protective custody in a camp for women. The camp was controlled by the SLA, and whilst there she was compelled to perform cleaning duties for the SLA. She was required to affirm to a magistrate each fortnight that she wished to stay in protective custody. In … 2009, she decided to leave protective custody, and returned to live in applicant 1’s family home in Jaffna.
•She fears that she will face harm because of her gender if returned to Sri Lanka.
•In 2014, some of her details were released by the Department during a Data breach. He [presumably CPM17] believes that the Sri Lankan Government would know of his claims to asylum in this country and would infer that he had made claims against the Government. He fears he would be imputed with anti-regime political opinion.
•He fears that her illegal departure and her claim of asylum in this country, would also lead her to be imputed with anti-regime political opinion. She fears harm on this basis.
•She fears harm as the de facto wife of a person suspected of being a member of the LTTE.
SECOND AUTHORITY DECISION
In the Second Authority Decision the Authority:
(a)set out the background to the Authority’s review: CB 803 at [1]-[3];
(b)said it had had regard to the information properly before it, with some new information accepted and some rejected under s 473DD of the Migration Act: CB 803-810 at [4]-[27];
(c)in relation to a September 2018 International Truth and Justice Project report entitled “Unsilenced: Male survivors speak of conflict-related sexual violence in Sri Lanka” (“ITJP Male Sexual Violence Report”): CB 524-549, says, for the purposes of determining whether to consider the ITJP Male Sexual Violence Report as new information under s 473DD of the Migration Act, at CB 809 at [23] that:
The 2018 ITJP [Male Sexual Violence] Report relates to the use of sexual violence against male prisoners in Sri Lanka by the security forces after 2009. … [CPM17] has not made any claims of this kind. In the circumstances, I am not persuaded this document has any particular relevance to … [CPM17’s] claims. I have not considered it.
(d)identified the Applicants’ claims for protection: CB 810-812 at [28]-[30] (see [5] above);
(e)accepted that the Applicants, being in a long-standing de facto relationship, were likely to be viewed as a married couple by the Sri Lankan authorities: CB 813 at [32];
(f)accepted CPM17s claim that, between 1996 and 2008 he had been harassed by agents of the Sri Lankan authorities, and that during this harassment he was mistreated and that this resulted in physical harm, but did not consider that this was anything but “essentially random” arising from his proximity to the “security incidents” involving the LTTE, not to CPM17’s specific profile or “any specific suspicions against him personally”: CB 814 at [38];
(g)was not persuaded that the death of “F1” (CPM17’s friend and neighbour) had heightened CPM17’s profile in the eyes of the Sri Lankan authorities as a person with links to the LTTE: CB 814-815 at [39]-[43], and in particular at [41]-[43] said as follows:
41.According to the first applicant there were witnesses to the shooting (not him) but they were too intimidated to come forward. He has not identified the witnesses. Afterwards, the first applicant assisted F1’s family to arrange the funeral for F1. Sometime later, he was questioned by the SLA about whether he knew who was responsible for the shooting. The applicant denied any knowledge. The SLA indicated to the applicant that they believed that F1 was shot because of his financial support for the LTTE. The applicant believes that the Sri Lankan authorities were responsible for the death of F1.
42.As evidence of his claims, the applicant has provided a death certificate for F1 and a translation. It indicates that F1 was shot and killed on 14 August 2007 by unidentified Gunman. I accept that F1 was shot and killed in August 2007 as claimed. However, I note that the certificate does not provide any support for the claim that he Sri Lankan authorities were responsible for his death. On his own evidence, the applicant did not witness the shooting. He has not provided any convincing independent evidence to support his attribution of the death to the Sri Lankan authorities. I find the applicant’s claim about Sri Lankan Government responsibility to be speculative.
43.There is a wealth of credible country information before me to indicate that throughout the period of civil war there were many armed factions operational in Sri Lanka. Thousands of civilians were killed during this period. However, like the delegate, I am not persuaded that the Sri Lankan Government can be ascribed responsibility for the death of F1.
(h)otherwise accepted that CPM17 was questioned about the death of F1, that the Applicants’ home was searched in the wake of the event, and the Applicants went into voluntary protective custody for six months thereafter: CB 816 at [51] and 818 at [59];
(i)as to a purported 25,000rp bribe CPM17 had claimed to pay to the Sri Lankan Army (“SLA”) to ensure his safety, found as follows at CB 817 at [52]:
52.The surrendered person report makes reference to a 15,000-rupee bond paid by the applicant at the time of his release. But there is no indication of the purpose of the bond. I note that in his Protection Visa Interview, and in submissions, it has been argued that the first applicant paid a 25,000 Rupee bribe and that this payment was made to the SLA so that his “problems with the SLA and the State apparatus could be resolved”. However, the surrendered person report does not indicate that he paid a 25,000 bribe; rather it says he paid a 15,000-rupee bond. In this context, it is worth noting that the surrendered person report does indicate that the second applicant paid a 25,000-rupee bond at the time of her release. However, when questioned by the delegate she denied that this occurred, and explicitly stated that no money had been paid. On the whole, I am not satisfied that the applicant did pay a 25,000 bribe as he claims.
(j)considered the other elements of the Applicants’ claims and concluded, at CB 818 at [60], that
I am not satisfied that either applicant was of any interest to the Sri Lankan Government after the final interview, sometime in early 2010. I do not accept that … [CPM17] signed a confession or was threatened with weapons charges. I do not accept that … [CPN17] would be imputed to be the wife of an LTTE member or former LTTE member. On the evidence before me, the applicants have significantly overstated the risks they faced from the authorities in Sri Lanka. I conclude they have done this in order to enhance their claims for protection.
(k)rejected the Applicants’ claims and found that they did not satisfy s 36(2)(a) or (aa) of the Migration Act: CB 826 at [98] and 827 at [105].
CONSIDERATION OF THE FURTHER AMENDED JUDICIAL REVIEW APPLICATION
The requirement for material jurisdictional error
For present purposes it suffices to observe that the Court may set aside a decision of the Authority upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ (and see also LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ delivered after the hearing of this matter).
Only grounds 2 and 3 pressed
The Further Amended Judicial Review Application contains three grounds of review, but only grounds 2 and 3 were pressed at hearing: Transcript, p 2.
Ground 2
Ground 2 of the Further Amended Judicial Review Application is as follows:
2.The decision of the Authority was affected by jurisdictional error in that, in determining whether to consider the ITJP Male Sexual Violence Report pursuant to s 473DD of the Migration Act 1958 (Cth), the Authority proceeded on the basis of a misunderstanding of, or failure to understand, the material in the ITJP Male Sexual Violence Report and its relevance to the applicants’ claims.
Particulars
2.1 The Authority found, at [23], that it was not persuaded that the ITJP Male Sexual Violence Report had “any particular relevance to [the first applicant’s] claims” because the report “relate[d] to the use of sexual violence against male prisoners in Sri Lanka by the security forces after 2009” and the first applicant “has not made any claims of this kind”.
2.2. The “Key Findings” of the ITJP Male Sexual Violence Report under the subheading “1. Victims” (CB p 20) included that:
2.2.1. “there seem[ed] to be a tendency in recent years … to arrest or abduct men who have only tenuous links with the LTTE”; and
2.2.2. “[a] large number of victims were forced to sign ‘confessions’ in Sinhala, a language most of them do not speak”.
2.3. The report was, on any reasonable view, relevant to:
2.3.1. the assessment of the plausibility and credibility of the applicant’s claim that he had been forced to sign a confession relating to the possession of weapons in a language that he did not understand, a claim which the Authority rejected on the basis that it was “not persuaded he is telling the truth”; and
2.3.2. the assessment of the credibility of the applicant’s claim that [he] was at risk of being detained and harmed by reason of a link with the LTTE, namely his friendship with F1.
2.4. The Authority failed to appreciate the true nature of the content of the ITJP Male Sexual Violence Report and its relevance to the applicant’s claims and rejected its relevance on an incorrect basis.
2.5. The information in the report was consistent both with the factual claims of the applicant as to what had happened to him in the past and with his claim that his fear of persecution in the future was well founded, such that, had the Authority properly understood the content of the report, the Authority might realistically have decided to consider it and it could realistically have affected the outcome of the review.
Applicants’ submissions
In relation to ground 2 the Applicants’ submitted that:
(a)the Second Authority Decision was affected by jurisdictional error in that its rejection of the ITJP Male Sexual Violence Report which formed part of the body of material in the Applicants’ submissions to the Authority made on 18 April 2019 (“Applicants’ Authority Submissions”): CB 387-394, was based on a failure to understand the relevance of the ITJP Male Sexual Violence Report;
(b)although the Authority was critical of the Applicants’ credibility: CB 817 at [55]-[56], it is significant that Authority accepted the Applicants’ account:
(i)as to the death of F1 in 2007 and that CPM17 had been questioned about F1;
(ii)that the Applicants’ home had been searched by four men in October 2018; and
(iii)that the Applicants’ were so frightened by this that they sought the assistance of the Sri Lankan Human Rights Commission and for a considerable period subjected themselves to protective custody: CB 818 at [59],
but despite this the Authority did not accept that CPM17 was linked to the LTTE through his friendship with F1: CB 818 at [60]; and
(c)the events of the 1990s and into the 2000s demonstrate clearly that the Sri Lankan Government was keen to root out any connection to the LTTE, however tenuous. Neither of the Applicants rest their claim on an actual connection with the LTTE. They say that at the very least the events in Sri Lanka leading up to their departure puts them in the profile of individuals who the Sri Lankan Government would regard as having possible links with the LTTE, given:
(i)their ethnicity and profile;
(ii)the mysterious death of F1, a person with apparent links to the LTTE, and the subsequent questioning by the Sri Lankan authorities of CPM17 about this;
(iii)the ongoing and repeated interrogation generally of CPM17 and the maltreatment he suffered during these interrogations over a significant period of time being more than a decade;
(iv)the visit by the four men in October 2008 and their subsequent voluntary submission to protective custody, something the Sri Lankan authorities would plainly maintain a record of; and
(v)CPM17’s reporting harassment after his release from this protective custody, despite having paid a sum to avoid such harassment.
(d)the dismissal of the ITJP Male Sexual Violence Report as insignificant and of no relevance to CPM17’s claim (and CPN17’s claim by extension) by the Authority was for the reason that it was not convinced that the ITJP Male Sexual Violence Report had “any particular relevance to [CPM17’s] claims” as it “relate[d] to the use of sexual violence against male prisoners in Sri Lanka by the security forces after 2009” and that CPM17 had not made any claims of this kind: CB 809 at [23];
(e)the ITJP Male Sexual Violence Report is very relevant to the assessment of CPM17’s claim that he was forced by the Sri Lankan authorities during one of the interrogations sessions to sign a false confession that he unlawfully possessed weapons;
(f)the key elements of the ITJP Male Sexual Violence Report include the following:
(i)a focus of the ITJP Male Sexual Violence Report is of sexual violence against men in conflict or conflict-affected settings, but it is not confined to this. It documents “multiple violations including abductions, detentions and extortion”: CB 528;
(ii)it is recorded that some of the victims of this campaign of maltreatment were LTTE cadres or forced LTTE recruits but that “[t]here seems to be a tendency in recent years however, to arrest or abduct men who have only tenuous links with the LTTE (such as for instance the fact that their uncle or brother was a member) or none at all. Some men were detained because they had been seen at a protest for the disappeared, or because they had campaigned for a political party or worked for an NGO. In all but one case, victims’ families paid bribes to end the torture. A large number of victims were forced to sign “confessions” in Sinhala, a language most of them do not speak.”: CB 534. This is consistent with CPM17’s account;
(iii)it is confirmed that those responsible for the infliction of such detention and abuse included the Sri Lanka Criminal Investigation Division (“CID”) and “different branches of the military”. This is again consistent with CPM17’s account; and
(iv)it is recorded that the settings of such torture includes “army camps, prisons and centres of detention of the CID and TID,” consistent with CPM17’s account as to the places where he was required to report, and was interrogated and at times beaten;
(g)the flaw in the Authority’s consideration of the ITJP Male Sexual Violence Report is to regard it as irrelevant to the Applicants’ claims because CPM17 had not said he had suffered from such maltreatment in the past and that this did not form part of his claim: CB 809 at [23]. This amounts to a failure to appreciate the content of the ITJP Male Sexual Violence Report and its relevance to the claims made by the Applicants and whether elements of their claims were credible or incapable of being believed;
(h)“new information” is to be read consistently to mean “information”, whether or not contained in a document, which meets the two requirements in s 473DC(1)(a) and (b) of the Migration Act, namely that:
(i)the information was not before the Minister or a delegate at the time of the decision; and
(ii)the Authority considers the information may be relevant: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 (“Plaintiff M174/2016”) at [24] par Gageler, Keane and Nettle JJ;
(i)a decision which assesses, incorrectly, that the “new information” is of marginal or no relevance to a claim for protection may constitute jurisdictional error: BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94; (2019) 163 ALD 483 at [54]-[55] per Rares, Perry and Charlesworth JJ. The question to be asked is whether the new information is relevant in the sense that it could assist in the assessment of the review, a decision which is required to be made de novo;
(j)the ITJP Male Sexual Violence Report is plainly relevant in that it documented multiple instances of detention and maltreatment, including severe abuse, by the Sri Lankan security forces against Tamil men including, but not limited to those who had links or were associated in some way to the cause of the LTTE, and even where there was no evidence of such connections; and
(k)the rejection of the ITJP Male Sexual Violence Report for the reasons given by the Authority was an error.
Minister’s submissions
In relation to ground 2 the Minister submitted that:
(a)there is no error in the Authority’s analysis of the ITJP Male Sexual Violence Report. The Authority’s high-level description of the content of the report as being relevant to sexual violence was accurate, as is demonstrated by the report’s title: “Unsilenced: Male survivors speak of conflict-related sexual violence in Sri Lanka”: CB 524;
(b)the context in which the ITJP Male Sexual Violence Report was provided to the Authority is also important. The ITJP Male Sexual Violence Report formed a small part of the 400 or so pages of country information CMP17 submitted to the Authority after the matter was remitted to it. The few lines identified in this ground were not drawn to the attention of the Authority, nor did the Applicants’ Authority Submissions say anything at all about why s 473DD(a) of the Migration Act was met in relation to the ITJP Male Sexual Violence Report or why it was relevant to the Applicants’ claims;
(c)section 473DD of the Migration Act calls for a process of “preliminary decision-making about what is the complete scope of the material it will be considering on its review for the purpose of its statutory task”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150; (2020) 171 ALD 477 (“BTW17”) at [68] per Mortimer and Jackson JJ;
(d)a valid application of s 473DD(a) of the Migration Act does not require the Authority to analyse every single sentence of the country information submitted to it (which in this case, was several hundred pages) to ascertain, with no real assistance from the legally represented Applicants, its relevance to the Authority’s assessment of the Applicants’ Authority Submissions. As was aptly put in CJH16 v Minister for Immigration [2017] FCCA 2375 at [27] per Judge Smith, the Authority is not required “to sift through all of the material before it, in order to excavate some possible reason that might satisfy it that there are exceptional circumstances”. If that was what was required by s 473DD(a) of the Migration Act then there would be no meaningful distinction between a preliminary s 473DD of the Migration Act analysis and a substantive consideration of the Applicants’ claims;
(e)further the Authority did not say that the ITJP Male Sexual Violence Report had absolutely no relevance to the Applicants’ claims. Rather, the Authority was not persuaded that the ITJP Male Sexual Violence Report had “any particular relevance” to the Applicants’ claims. That was a finding that was reasonable and open to it, given the ITJP Male Sexual Violence Report concerned sexual violence. That much is readily apparent because the pages in the ITJP Male Sexual Violence Report refer to persons being stripped naked, forced to engage in sexual conduct, and otherwise humiliated via sexual conduct. Although the Applicants contend that the ITJP Male Sexual Violence Report “documented victims” experiences of multiple violations, including abductions, detentions and detention”: CB 527, that quote has been taken out of context. The full sentence reads as follows:
While the ITJP has extensively documented victims’ experiences, of multiple violations, including abductions, detentions and detention, this report focuses specifically on male victims’ experiences of sexual violence.
(f)the above sentence simply shows that ITJP’s other works contain the “extensive documentation” of the relevant violations which the Applicants contended was in the ITJP Male Sexual Violence Report. It is also telling that the Applicants’ Authority Submissions only substantively refer to one of the 51 pages in the ITJP Male Sexual Violence Report to support the Applicants’ Authority Submissions: CB 534. CPM17 did not advance any claim that he had been sexually assaulted;
(g)additionally the Authority’s statutory task was to determine whether there were any “exceptional circumstances”. In other words, it was considering whether there was anything unusual, special or out of the ordinary about the circumstances that justified the consideration of the ITJP Male Sexual Violence Report: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221; (2018) 159 ALD 417 (“BVZ16”) at [39]-[41] per White J; and
(h)there is nothing extraordinary about a 50-page report that is predominantly about sexual violence, where at most, only one page of information might possibly be relevant to CPM17.
Consideration of ground 2
Legislation
Section 473DD of the Migration Act provides as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Law concerning s 473DD of the Migration Act
The High Court considered the nature of the procedural duties under s 473DD of the Migration Act in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”) and held that performance of the procedural duty in s 473DD of the Migration Act requires:
(a)the Authority:
(i)first, to assess new information against the criteria specified in ss 473DD(b)(i) and (ii) of the Migration Act; and
(ii)if satisfied that one or both criteria are met, to take the outcome of that assessment into account in its assessment of exceptional circumstances under s 473DD(a) of the Migration Act: AUS17 at [11]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J; and
(b)that if neither criterion under s 473DD(b) of the Migration Act is met, that the Authority is prohibited from considering the new information and that there is no need to assess that information against the criterion in s 473DD(a) of the Migration Act: AUS17 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J.
The Court notes that no “formulaic consideration” of s 473DD of the Migration Act was required to be undertaken by the Authority: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (“APH17”) at [79] per Markovic J; ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 (“ARO17”) at [64] per Wigney J.
In BTW17 at [72]-[77] per Mortimer and Jackson JJ the plurality in the Full Court of the Federal Court said as follows:
72Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant — in all these circumstances the Authority is entitled to reflect on and assess the review material already before it — but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions — in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
73However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own — fresh — consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
74As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.
75That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.
76Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 [v Minister for Immigration and Border Protection [2018] FCA 474] is correct.
77Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 [v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24] at [23]–[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
The Authority did not express its findings concerning the ITJP Male Sexual Violence Report by reference to the terms of s 473DD of the Migration Act, however:
(a)no formulaic consideration was required: APH17 at [79] per Markovic J; ARO17 at [64] per Wigney J; and
(b)it is evident from paragraphs proximate to that in which the finding concerning the ITJP Male Sexual Violence Report was made that the Authority was aware of the requirements of s 473DD of the Migration Act: see CB 807 at [18]-[19], 809 at [24], and 810 at [27].
It is evident that the ITJP Male Sexual Violence Report met the requirements of s 473DD(b)(i) of the Migration Act as it was published in September 2018: CB 524, that is, after the Delegate’s Decision, and therefore warranted consideration under s 473DD(a) of the Migration Act: AUS17 at [11]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J. By contrast, the ITJP Male Sexual Violence Report could not have met the requirements of s 473DD(b)(ii) of the Migration Act because it was not information “personal” to CPM17 (or for that matter CPN17): BTW17 at [75] per Mortimer and Jackson JJ, a matter which was accepted by the Applicants’: Transcript, p 2.
The Authority did consider, albeit succinctly, whether there were “exceptional circumstances” for the purposes of s 473DD(a) of the Migration Act warranting consideration of the ITJP Male Sexual Violence Report as new information, and concluded that it was not persuaded that the ITJP Male Sexual Violence Report had “any particular relevance” to CPM17’s circumstances where CPM17 had not made any claims that sexual violence had been perpetrated against him: CB 809 at [23]. In short, the Authority undertook the required statutory task. The Authority was also indubitably correct in finding that the ITJP Male Sexual Violence Report had no particular relevance to CPM17’s claims. It does not appear to be in dispute that CPM17 did not make any claims that sexual violence had been perpetrated against him, and the Authority so found: CB 809 at [23]. The Authority’s function was to respond to the case that the Applicants’ advanced: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [78] per Kirby J; SGBB v Minister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [17] per Selway J, and no case of sexual violence against CPM17 was advanced. On the face of it the ITJP Male Sexual Violence Report was not relevant, and in those circumstances would not meet the exceptional circumstances criteria in s 473DD(a) of the Migration Act for consideration as new information.
The Applicants contended that the ITJP Male Sexual Violence Report documented victims’ experiences of multiple violations, including abductions, detentions and detention, but as the Minister submitted reliance on the passage quoted by the Applicants had been quoted without reference to its proper context. That context included the fact that the remainder of the sentence partially quoted indicated that the ITJP Male Sexual Violence Report “focuses specifically on male victims’ experiences of sexual violence”: CB 527, while the broader context suggests that it is in other places and other reports that the ITJP has documented victims’ experiences of multiple violations, including abductions, detentions and detention in other contexts in Sri Lanka. That the specific focus of the ITJP Male Sexual Violence Report is upon male sexual violence, a matter about which CPM17 made no claims, is reinforced by delving deeper into the ITJP Male Sexual Violence Report where:
(a)the author of the Foreword observes that “… it confronts us with the sexual and sexualised specifics of much that happens within detention centres [in Sri Lanka]”: CB 526;
(b)in chapter I – Introduction it is said that it “provides a narrative analysis of the experiences of the more than one hundred male victims of sexual violence by the state security forces in Sri Lanka”: CB 527;
(c)in chapter II – Background it is said that “it focuses exclusively on male victims and provides a narrative analysis of their experiences”: CB 530; and
(d)in chapter IV – Key Findings at part 6 the forms of sexual violence, including “Forced Nudity”, “Genital Mutilation”, “Rape”, “Forced Masturbation”, “Coerced Sexual Acts”, “Enforced Prostitution” and “Sexual Slavery” are set out and dealt with: CB 541-545.
The ITJP Male Sexual Violence Report was relevant to a very narrow cohort of persons detained by the Sri Lankan authorities, and to their very specific circumstances about which CPM17 had made no claims. The ITJP Male Sexual Violence Report was a very specific report based on entirely original research involving interviews with 121 Tamil men who were survivors of sexual violence in Sri Lanka: CB 532-533. It was a sui generis report, and not one which, as the Applicants submitted, was an updated version of an earlier report: Transcript, p 4. Further, at CB 809 at [24] the Authority found that there were exceptional circumstances permitting the consideration of other new information (including from the United Nations, Human Rights Watch, the United States Department of State, the United Kingdom Home Office, and Freedom From Torture) concerning the use of violence generally against persons in custody both during and after the Sri Lankan civil war, which was the subject of claims by CPM17. This demonstrates that in considering the question of “exceptional circumstances” the Authority had regard to the claim actually made by CPM17, and distinguished between relevant and less relevant country information, when assessing whether there was anything out of the ordinary or unusual which met the exceptional circumstances test in s 473DD(a) of the Migration Act: BVZ16 at [39]-[41] per White J. The Authority’s decision not to consider the ITJP Male Sexual Violence Report was based on its lack of satisfaction that there were exceptional circumstances under s 473DD(a) of the Migration Act to justify its consideration. That lack of satisfaction involved the Authority making an evaluative judgment on bases which were well and properly explained and justified by the reasons the Authority gave: Plaintiff M174/2016 at [74]-[75] per Gageler, Keane and Nettle JJ. In the circumstances there was no error by the Authority in assessing the relevance of the ITJP Male Sexual Violence Report as marginal.
In the above circumstances there was no misunderstanding of, or failure to understand, the material in the ITJP Male Sexual Violence Report and its relevance to the Applicants’ (and, in particular, CPM17’s) claims. It follows that ground 2 of the Further Amended Judicial Review Application does not establish jurisdictional error in the Authority Decision.
Ground 3
Ground 3 of the Further Amended Judicial Review Application is as follows:
3. The decision of the Authority was affected by jurisdictional error in that the decision of the Authority was based upon two findings which were illogical, irrational and lacked an intelligible justification
Particulars
3.1. The Authority found (at [52]) that it was “not satisfied that [the first applicant] did pay a 25,000 [rupee] bribe as he claims” in circumstances where:
3.1.1. the only reasoning identified by the Authority for doubting that the first applicant paid a 25,000 rupee bribe for protection upon his release from protective custody, as he had claimed, was that an official “surrendered person report” made reference to a 15,000 rupee “bond” with “no indication of the purpose of the bond”, but did not indicate that the first applicant had paid a “bribe”; and
3.1.2. there is no logical, rational or intelligibly justifiable basis for the Authority’s assumption that the payment of a bribe would be recorded in an official report, or that the failure of the report to record the payment of such a bribe was probative of whether one was paid.
3.2. The Authority found (at [42]), that the first applicant’s claim of Sri Lankan government involvement in the death of F1 was “speculative” in circumstances where:
3.2.1. the Authority accepted (at [59]) that F1 was shot and killed on 14 August 2007;
3.2.2. the first applicant’s evidence, which was not rejected by the Authority, was to the effect that he had attended an army camp on request and soldiers had told him that they knew the truth about his providing financial support to the LTTE (as the army had alleged F1 had done) and “reminded him about what had happened to F1” (at [44]);
3.2.3. the Authority accepted (at [59]) the first applicant’s evidence that, after F1’s death, the applicant faced further questioning about the death of F1, that his home was searched in 2008 and that he was frightened by this event to the extent that he sought the assistance of the Sri lanka Human Rights Commission and remained in voluntary protective custody for some six months (at [51])
3.3Each of the findings referred to above was taken into account by the Authority in assessing the first applicant’s credibility and reaching its overall conclusion about his claims and the risk of harm to him upon return to Sri Lanka.
CPM17’s submissions
In relation to ground 3, the Applicant’s submitted that:
(a)the Applicants accept that there is a substantial burden in demonstrating irrationality on the part of a decision-maker in this context. They must show that the reasoning and consequently the decision is one “at which no rational or logical decision make could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) ALD 248 (“SZMDS”) at [130] per Crennan and Bell JJ. However, if such error is demonstrated, and if the error is material, the Court will grant the appropriate relief;
(b)the Applicants say that the two errors elicited in ground 3 rise to the level of irrationality and illogicality which justifies such intervention.
Minister’s submissions
In relation to ground 3 the Minister submitted that:
(a)it is well-settled that overturning findings of fact on judicial review is markedly difficult. It requires a standard of illogical or irrationality to be reached which is described in terms of being “extreme”: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 at [47] per Griffiths, Perry and Bromwich JJ, in the sense that “no rational or logical decision maker” could make the finding in question: SZMDS at [130] per Crennan and Bell JJ;
(b)the difficulty in concluding that a finding was illogical or irrational arises due to the fact that logical and rational minds can differ – and differ quite considerably – on the weight to be given to evidence or the inferences that should be drawn from evidence: SZMDS at [131] per Crennan and Bell JJ;
(c)where illogicality or irrationality complaints are made, “[t]he limited role of a court … must constantly be borne in mind”: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417 at [26] per Kiefel CJ; Keane, Gordon and Steward JJ; SZUXN v Minister for Immigration and Border Protection & Anor [2016] FCA 516; (2016) 69 AAR 210 (“SZUXN”) at [56] per Wigney J;
(d)in relation to the Authority’s finding that CPM17 did not pay a 25,000 rupee bribe upon release from protective custody:
(i)the Applicants seems to argue that the only reasoning identified by the Authority for doubting that CPM17 paid a 25,000 rupee bribe for his protection upon his release from protective custody was that the official surrendered person report made reference to a 15,000 rupee bond with no indication of the person bonded and with no reference to CPM17 having paid a bribe. This was said to be illogical, irrational and unjustifiable reasoning because it wrongly assumes that a bribe would be recorded in an official report;
(ii)the Minister contends that the Applicants have adopted an unduly narrow view of the Authority’s reasons. The Authority did not reject the Applicants’ claim regarding the bribe on the sole basis that it was not referred to in the surrendered person’s report;
(iii)the Authority rejected the claim for two additional reasons, the first being that the claim was that the amount of money involved was 25,000 rupees but the record only showed a payment of 15,000 rupee: CB 817 at [52]. The description given of the bribe by CPM17, and those that represented him, varied over time but it was reasonable for the Authority to proceed on the basis that the 15,000 rupee bond recorded in the report was the same transaction as the 25,000 rupee payment described by CPM17 in his statement of claims as a payment to ensure an unidentified “they” (army personnel or Tamils working for the CID) would “speak to the army so they wouldn’t bother [him]”. CPM17 himself does not appear to have used the term “bribe” in his written evidence, though the same payment was described by his representatives as follows:
(A)by his lawyer in their submissions to the Delegate in this way, at CB 107:
[CPM17] … was told for payment of 25,000 rupees his problems with the SLA and state apparatus could be resolved and that he would be free from ongoing harassment and interrogation, etc. As part of that arrangement the PA took the necessary steps to secure his release in April 2009.
(B)by his lawyer in their submissions to the Authority prior to the First Authority Decision, at CB 266, as paid:
… in part to secure his release and in an attempt to bribe the CID and SLA to ensure his safety upon his release.
(iv)further the Applicants had admitted that the surrendered person report was incorrect about a related matter: it recorded that CPN17 had paid a 25,000 rupee bond but she said in her interview with the Delegate that no money had been paid: CB 817 at [52]. It was open for the Authority to have doubted that any payment was made at all by CPM17 in circumstances where it was admitted that another payment recorded in the document did not occur; and
(v)the only documentary evidence CPM17 gave in support of his serious allegation that he was forced to pay a 25,000 rupee bribe was a document showing he had paid a 15,000 rupee bond. It was unsurprising that the Authority was not satisfied that the bribe was paid given the state of the evidence. No illogicality is revealed, let alone any extreme illogicality needed to demonstrate jurisdictional error;
(e)in relation to the Authority’s finding that the Sri Lankan authorities’ involvement with F1’s death was speculative:
(i)the Applicants’ argument appears to be that, given the Authority accepted parts of the CPM17’s narrative about the death of F1 and the Applicants’ voluntary protective custody, it was illogical for the Authority to have rejected that the Sri Lankan authorities were involved with the death of F1;
(ii)however, as a matter of logic, just because aspects of a narrative are accepted, does not mean that the entirety of that narrative has to be accepted. The Minister contends that the Authority had ample basis to find that the Sri Lankan authorities’ involvement with F1’s death was speculative because:
(A)CPM17 did not witness the shooting, nor could he identify any relevant witnesses: CB 814 at [41];
(B)F1’s death certificate merely indicated that he had been killed by an unidentified gunman: CB 815 at [42];
(C)there was no convincing independent evidence to confirm the Sri Lankan authorities’ involvement: CB 815 at [42];
(D)there was country information which confirmed that thousands of civilians were killed during the civil war because there were many armed factions: CB 815 at [43]; and
(E)in any event, there is nothing inherently inconsistent between a finding that CPM17 was interviewed after the death of F1, with a finding that it was not the Sri Lankan authorities who killed F1.
Consideration of ground 3
The Further Amended Judicial Review Application asserts that the Authority Decision was illogical, irrational and lacked an intelligible justification.
For the Authority Decision to be found to be affected by jurisdictional error on the ground of unreasonableness or illogicality, the Authority Decision must be one that no reasonable decision-maker could arrive at on the same evidence, or one without an evident and intelligible basis: SZMDS at [130], [131] and [135] per Crennan and Bell JJ. SZMDS sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ. Further in order for jurisdictional error to be found a finding must reach a threshold of “extreme illogicality”: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 (“DAO16”) at [4] and [30] per Kenny, Kerr and Perry JJ.
In SZUXN v Minister for Immigration and Border Protection & Anor [2016] FCA 516; (2016) 69 AAR 210 (“SZUXN”) the Federal Court, by reference to the judgment of the High Court in SZMDS and a number of relatively recent first instance Federal Court judgments, observed that:
(a)jurisdictional error may be established on the basis of illogical reasoning or illogical or irrational findings by the Tribunal in the course of reaching its final conclusion: SZUXN at [54] per Wigney J;
(b)jurisdictional error will not be made out in relation to particular findings or reasoning challenged on the basis of illogicality or irrationality unless it is shown that those findings could not have been made, or that the reasoning could not have been employed, by a reasonable or rational decision-maker: SZUXN at [50] per Wigney J; and
(c)it is not sufficient to establish illogicality, irrationality or unreasonableness simply because one conclusion has been preferred to another possible conclusion: SZUXN at [52] per Wigney J.
With respect to the alleged bribe, it is evident that there were a number of factors to which the Authority had regard when deciding to reject the claim that CPM17 had paid a 25,000 rupee protection bribe. The rejection of the claim concerning the alleged bribe was not based solely on the content of the surrendered persons report, but also had regard to:
(a)the inconsistencies in the description of the bribe over time in the submissions made on behalf of the Applicants;
(b)the recording in the surrendered persons report of a payment to CPN17 which was never made to CPN17, thus giving rise to doubt as to the overall accuracy of the content of the surrendered persons report; and
(c)the inconsistency between the amount of the bond recorded in the surrendered persons report (15,000 rupee) and the amount of the alleged bribe paid by CPM17 (25,000 rupee),
and these other factors provided, at the very least in combination, a justifiable basis for the Authority’s finding concerning the alleged bribe.
In the circumstances there was an adequate evidentiary basis for the Authority’s finding that it was not satisfied that CPM17 had paid a 25,000 rupee bribe, and that finding was not a finding which no reasonable decision-maker could make, and it was therefore not illogical, irrational or lacking in an intelligible justification: SZMDS at [130]-[135] per Crennan and Bell JJ; SZUXN at [50] and [52] per Wigney J, and certainly did not meet the test of “extreme illogicality”: DAO16 at [4] and [30] per Kenny, Kerr and Perry JJ, and therefore does not establish jurisdictional error in the Authority Decision.
In relation to the death of F1 and the Authority’s finding that the claim that the Sri Lankan authorities were involved with F1’s death was speculative, it is plain that there were numerous other factors which the Authority considered and had regard to in making that finding. Those other factors, set out in the Minister’s Submissions at [25(e)(ii)(A)-(E)] above and which need not be repeated verbatim, provided a rational and intelligible justification for the Authority’s finding the claim that the Sri Lankan authorities were involved with F1’s death was speculative. Whilst the combination of factors provide a rational and intelligible justification for the Authority’s finding, even individual factors or a combination of other individual factors, such as the death certificate providing that F1 had been killed by an unidentified gunman, or the fact that thousands of Sri Lankan civilians were killed by armed factions, could also have provided a rational and intelligible justification for the Authority’s finding.
In the circumstances there was an adequate evidentiary basis for the Authority’s finding that the claim that the Sri Lankan authorities were involved with F1’s death was speculative, and that finding was not a finding which no reasonable decision-maker could make, and it was therefore not illogical, irrational or lacking in an intelligible justification: SZMDS at [130]-[135] per Crennan and Bell JJ; SZUXN at [50] and [52] per Wigney J, and certainly did not meet the test of “extreme illogicality”: DAO16 at [4] and [30] per Kenny, Kerr and Perry JJ, and therefore does not establish jurisdictional error in the Authority Decision.
It follows that ground 3 of the Further Amended Judicial Review Application does not establish jurisdictional error in the Authority Decision.
CONCLUSION AND ORDERS
The Court has concluded that the Applicants have failed to establish jurisdictional error as alleged in grounds 2 and 3 of the Further Amended Judicial Review Application. It follows that the Further Amended Judicial Review Application must be dismissed. There will be orders accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 20 January 2025
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