CQP16 v Minister for Immigration
[2020] FCCA 1513
•12 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQP16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1513 |
| Catchwords: ADMINISTRATIVE LAW – Application to review decision of the Immigration Assessment Authority – leave to rely on proposed amended application – whether the Authority made findings with insufficient foundational material such as to involve jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 473DB, 473DC, 473DE, 473FA, 473GB Federal Circuit Court Rules 2001 (Cth), r.7.01 |
| Cases cited: ABT17 v Minister for Immigration & Anor [2018] FCCA 658 |
| Applicant: | CQP16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2524 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 26 March 2019 |
| Date for Last Submission: | 29 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bodisco |
| Solicitors for the Applicant: | Shelly Legal |
| Counsel for the Respondents: | Mr Kaplan |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant have leave to file and rely on the proposed amended application.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2524 of 2016
| CQP16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Immigration Assessment Authority (the Authority) dated 24 August 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Safe Haven Enterprise visa (SHEV).
The Applicant, a citizen of Sri Lanka, arrived in Australia in October 2012. In September 2015 he lodged an application for a SHEV. In his application form and accompanying statement the Applicant claimed to fear harm because of his perceived political opposition to the United People’s Freedom Alliance (the UPFA).
In support of his application, the Applicant claimed that in August 2012 he was involved in an incident with members of the UPFA after he refused to lend them his van for election purposes. He claimed they damaged his vehicle and that as he tried to drive away, someone was injured by his van. He claimed the “mob” then chased and threatened him. The Applicant also claimed that subsequently people came looking for him, including after he left for Australia. He claimed that in February 2014 men threatened his father that if he did not return to Sri Lanka they would kill his father.
The Applicant claimed to fear that if he returned to Sri Lanka he would be subjected to serious harm, including physical attacks leading to his death, by members of the UPFA.
At his SHEV interview, the Applicant made an additional claim that, after ten years of service, he had deserted the Sri Lankan Navy in late 2009 after being sexually abused for several months by a superior. He claimed that he had been unable to get a discharge because he had not completed 12 years of service, so he took leave but did not report back for duty. He claimed that the Navy had sent men to look for him. He claimed they would catch him at the airport if he returned to Sri Lanka and that he would be punished for desertion with the death penalty or a harsh jail term. He told the delegate that he had not disclosed this claim earlier due to the “embarrassing” incidents he had experienced.
On 14 June 2016 a delegate of the Minister refused his application for a SHEV. Notwithstanding the Applicant’s failure to previously mention his Navy claim, the delegate accepted that the claimed circumstances were not fabricated. She accepted that the Applicant had served ten years in the Navy and had then failed to return from leave after experiencing sexual abuse by his senior officer.
However the delegate had regard to the “non-specific” penalties for desertion, other than desertion to the enemy, provided for in the Sri Lankan Navy Act 1950 (the Navy Act). She also found that available country information indicated that the Sri Lankan government was generally not intent on prosecuting deserters and that this was consistent with the Applicant’s own experience. The delegate had regard to the fact that the Applicant had continued to live at his registered address for some two years after his desertion, during which time he had several dealings with government authorities. The delegate was of the view that if the Applicant was of genuine interest to the authorities he would have been arrested and prosecuted for desertion or returned to his naval post. The delegate considered that the fact that the Applicant was able to live unhindered, conduct his business and obtain government services was evidence that his desertion was of no concern to the government of Sri Lanka. The delegate was not satisfied that the Applicant would face prosecution or any harm arising from the fact that he was a deserter.
The decision of the Authority
On 14 June 2016 the Applicant’s matter was referred to the Authority. It appears that the Applicant did not make a submission or give any new information to the Authority.
In its reasons for decision the Authority stated that it had regard to the material referred by the Secretary of the Department and that it had also obtained new information, which it described as “specifically: information about the attitude of the Sri Lankan authorities towards military deserters (a class of persons of which the applicant is a member)”. The Authority listed the information it had obtained, consisting of news articles from July 2016. The Authority acknowledged that this information had appeared after the date of the delegate’s decision. It stated that this information related to the attitude of the Sri Lankan authorities towards military deserters who had travelled overseas and also to a possible change in attitude on the part of the authorities towards military deserters. The Authority was satisfied that there were exceptional circumstances to justify considering this new information.
The Authority outlined the Applicant’s claims to fear the UPFA and to fear that he would be arrested at the airport and sentenced to death for desertion from the Sri Lankan Navy.
The Authority did not accept that the August 2012 incident, including striking a person with his vehicle, had occurred. It had regard to information about events at that time and credibility concerns, which it discussed. It was not satisfied that the Applicant would face a real chance of harm on this basis if he returned to Sri Lanka.
After outlining the circumstances in which the Applicant claimed to fear harm as a deserter, the Authority noted that it had been put to him at the SHEV interview that the most he could be punished with for his desertion was a jail sentence, to which he had replied that it depended on the judgment and that even if he escaped the Navy’s punishment, he would still have to face the “political people”.
The Authority accepted that the Applicant was wanted by the Sri Lanka authorities in connection with his naval service and that the authorities were aware that he was in Australia. It accepted that he had deserted from the Sri Lankan Navy in late 2009 to escape sexual abuse from a superior, but observed that he did not claim to fear any future harm on the basis of this abuse.
The Authority considered the Applicant’s claim that as a deserter he would be arrested by the authorities on return and sentenced to death. At paragraphs 23 to 27 it gave detailed reasons for not accepting that there was a real chance that he would be executed for desertion or subject to a prison term. As these paragraphs are relevant to the ground of review they are set out in full, as follows:
23. I accept that the applicant deserted from the Sri Lankan Navy in late 2009 and departed Sri Lanka illegally in 2012. The applicant claims that as a deserter he will be arrested by the Sri Lankan authorities upon return and sentenced to death. In practice the Sri Lankan authorities have dealt with desertion through intermittent round ups and a succession of amnesty offers. For example, in February 2011 the Sri Lankan military offered to discharge all 50,000 deserters without disciplinary action to mark the country's independence anniversary. That same month it was reported that some 1,500 army personnel made use of the amnesty to surrender, while 4,420 army personnel and 10 officers had been arrested, leaving the number of deserters at some 40,000. During 2011 the Sri Lankan Army announced a campaign to round up and apprehend some 60,000 deserters. It was believed the Sri Lankan Army wanted to de-link itself from criminal acts perpetrated by deserters (there had been a number of violent crimes of this kind) and also to let non-criminal deserters get on with their lives. However, some 12 days after the announcement of the campaign the Sri Lankan Army announced that it was giving up on the round up and that nearly all deserters would be de-listed and be able to term themselves “ex-soldiers” rather than deserters. Only the few deserters suspected of serious offences would be pursued.
24. Relevantly for the applicant, in January 2016 a further amnesty was announced for navy deserters, with deserters instructed to report to their closest navy camp from 1 July 2015 to 31 September 2015 to complete the clearance formalities. Another amnesty ran from 13 June 2016 to 12 July 2016. It was reported that the purpose of the amnesty was to clear up military personnel records and to enable deserters to resolve their status so they could legally obtain employment and travel (warrants issued against deserters prevented deserters from legally departing or returning to Sri Lanka). Some 18,380 military personnel, including some 831 members of the Navy, reportedly took advantage of this amnesty. These persons have been officially cleared along with their documents and salary payments which they were entitled to receive and which are to be expedited in the near future. On 14 July 2016 Sri Lanka’s Defence Ministry said it would take legal action against deserters who had failed to get themselves discharged during the recent amnesty period. When asked about those military personnel who went absent without leave (AWOL) due to their involvement in criminal activities, Brigadier Jayaweera said their cases would be assessed on an individual basis and if there was evidence, authorities would take a decision to refer their cases to either the military police or the police. Until then, the military will keep such persons in its custody, he said. It was subsequently reported that those who surrendered during the recent amnesty were now undergoing a clearing process prior to their discharge. Some were yet to get clearance as the military had to clear the loans and bonds these persons had signed with the military when going overseas for courses and training. On 17 July 2016 it was reported that some 36,000 deserters had failed to take advantage of the amnesty and these persons would be tracked down and arrested in a countrywide operation involving the military and the police. On 23 July 2016 it was reported that even if these persons reported themselves they would have to go through the same legal process as those arrested. It was also stated that the Defence Ministry would not declare another amnesty period, as deserters were given a month to report back to clear themselves.
25. I accept that the applicant has deserted from the Sri Lankan Navy and that the Sri Lankan authorities have an active interest [in the] applicant for reason of his Sri Lankan naval service. Recent reporting indicates that warrants are issued for deserters. I note that the applicant does not hold a passport and would likely have to return to Sri Lanka on a temporary travel document. DFAT reports that, when returnees arrive with temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. I accept, the evidence before me that the applicant would be arrested on the basis of the warrant issued for his arrest for desertion from the Sri Lankan Navy.
26. The applicant claims that as a deserter he will be arrested by the Sri Lankan authorities upon return and executed. Sri Lanka’s Navy Act 1950 provides for the punishment of death only in circumstances where the person has deserted to the enemy (s.71). There is no evidence of the applicant being suspected of this and the applicant does not claim to have done this (he deserted in September 2009, well after the May 2009 defeat of the LTTE). I am not satisfied that there is a real chance that the applicant would be executed for desertion.
27. Sri Lanka’s Navy Act 1950 provides for the punishment of deserters, in circumstances other than desertion to the enemy, by “rigorous imprisonment” or “or any less severe punishment”. As noted above, during July 2016 Sri Lanka’s Defence Ministry said it would take legal action against deserters who had failed to get themselves discharged during the recent amnesty period, and that there would be no further amnesties. These reports provide no information about what kind of legal action will be undertaken by the Sri Lankan authorities in the future. Previously it has been the practice of the Sri Lankan authorities to discharge such persons without penalty. Given the leniency that the Sri Lankan authorities have shown in the past (even when the Sri Lankan military was engaged in active conflict with the LTTE there were few cases of prison sentences, and discharges without penalty were common) I am not satisfied that there is a real chance that the applicant would be sentenced to a prison term. Nor am I satisfied on the information before me that there is a real chance that the applicant would be compelled to return to service with the Sri Lankan Navy. In recent years the practice of the Sri Lankan military has been to discharge such people without penalty and to settle any money owed to them. However, given that the applicant did not resolve his status during the recent amnesty period, and given recent statements by Sri Lanka’s Defence Ministry, I am satisfied that there is a real chance that, in addition to being discharged, it is likely that the applicant would not receive any outstanding salary payments owed to him and he would have to settle any debts owed to the military. I do not consider that such financial penalties, and being discharged, would amount to serious harm. Furthermore, and as will be discussed below, I consider that these penalties would result from a law of general application and would not amount to persecution within the meaning of s.5J(4).
(footnotes omitted)
The Authority found that apart from his desertion the only other reason the Applicant would be of interest to the Sri Lankan authorities was his 2012 illegal departure. On the basis of cited country information, it accepted that the Applicant departed Sri Lanka illegally by boat and would be charged under Sri Lanka’s Immigrants and Emigrants Act 1949 (the I&E Act). It had regard to the fact that the evidence before it did not indicate that the Applicant was currently wanted by the authorities for any reason other than his desertion from the Navy. It was not satisfied that there was a real chance that the Applicant would be punished with anything other than a fine for having departed Sri Lanka illegally. It did not consider that this punishment would amount to serious harm. In any event, it was of the view that the penalty under the I&E Act would result from a law of general application and would not amount to persecution within the meaning of s.5J(4) of the Migration Act 1958 (Cth) (the Act).
It was noted that the Applicant did not claim that the sexual abuse he had experienced would factor in or somehow affect his treatment as a deserter in any way on return to Sri Lanka and that there was no evidence to indicate that it would do so or that the Applicant would face similar abuse in the future.
The Authority observed that in the past it had been reported that the Sri Lankan authorities had pursued more rigorously those deserters suspected of having committed serious crimes, such as murder and violent assaults, and had sought to ensure that such offenders were charged not just with desertion but also with such other more serious crimes. It acknowledged that the Applicant claimed to have struck a person with his vehicle in August 2012, but had regard to the fact that it did not accept that this had occurred or that he was of interest to the authorities on that basis. It recorded that the Applicant did not claim to have committed any offence other than exiting the country illegally (for which the Authority accepted that he would be charged and would be liable to be fined) and the offence of desertion (for which it accepted that he was liable to “punishment”).
The Authority had regard to the fact that the Sri Lankan authorities would also likely consider that the Applicant was a failed asylum seeker. However it was not satisfied that the Applicant’s travel to Australia or his asylum application would affect the manner in which he was treated on return. It also noted that while the military had indicated that it may turn arrested deserters over to the police if they were wanted for other crimes, there was no evidence to indicate that a matter like illegal departure would affect the legal action pursued against deserters for their desertion. It found that there was no information to indicate that the Applicant’s 2009 desertion would affect the manner in which he was dealt with for the crime of illegal departure.
Although the Authority was not satisfied that the Applicant would face a real chance of being punished with a prison sentence for either desertion or illegal departure, it accepted that he would be arrested for these offences and that there was a real chance he would spend some time in custody until his respective convictions and penalties were settled or he was released on bail.
The Authority had regard to the fact that under s.23 of the Navy Act a person who had committed any naval offence under that Act must be taken into naval custody. It found that as the Applicant had deserted and avoided apprehension, he would be tried and punished for this offence by a court martial or by a naval officer exercising judicial powers under the Navy Act. There was no specific information before it as to how long the Applicant might be held in custody in relation to his desertion before he was released on bail or the matter was settled before a military court, but the Authority noted that the Navy Act required that if the period was longer than 7 days the commanding officer must provide a report on the necessity for such custody. The Authority acknowledged DFAT reports of long delays before a suspect’s case could be bought to trial. However it found that, given the manner in which the Sri Lankan government had, in recent years, dealt with the matter of discharging deserters through quickly conducted amnesties, it was not satisfied that the Applicant would be subject to a lengthy period in custody before his matter was settled.
The Authority acknowledged that the Applicant would then be handed over by the military to the police for settlement of his illegal departure offence. It took into account country information about the treatment of persons charged with illegal departure and accepted that the Applicant could be held in custody for a number of days before appearing before a magistrate.
However, considering these matters cumulatively, while the Authority was satisfied that there was a real chance that the Applicant’s offences would result in him being arrested and that until each matter was settled he would be held in custody for a period of time, it considered that such custody would not be prolonged.
Further, while the Authority accepted that generally prison conditions in Sri Lanka did not meet international standards and that there had been incidents of mistreatment, it had regard to DFAT’s assessment that the overall risk of torture or mistreatment for the majority of returnees, including those suspected of offences under the I&E Act, was low. The Authority noted that there was no evidence before it to indicate that being a deserter would place the Applicant at greater risk of such harm. It was not satisfied that there was a real chance that the Applicant would be subjected to torture or other mistreatment, including by inmates, while in custody. While the Authority accepted that the Applicant may be held in custody for a period, albeit not prolonged, it was not satisfied that this would be for one of the reasons mentioned in s.5J(1)(a) of the Act.
The Authority considered that the Applicant’s treatment under the Navy Act would not amount to discriminatory conduct, but found rather that it would be the result of the application of a law which applied to all Sri Lankans who deserted from naval service, with such persons being no longer considered deserters once the offence had been settled. Similarly, the Authority found that the treatment of the Applicant under the I&E Act would not amount to discriminatory conduct, but rather would be the result of a law of general application, with such persons being no longer at risk of punishment for this offence once the matter had been settled. The Authority also found that the evidence did not suggest that either of these laws was selectively enforced or applied in a discriminatory manner.
It concluded that the investigation, prosecution and punishment of the Applicant for desertion under the Navy Act and for illegal departure under the I&E Act would be the result of laws of general application and would not amount to persecution within the meaning of s.5J(4) of the Act and hence that the Applicant did not meet the visa criterion in s.36(2)(a) of the Act.
The Authority considered the complementary protection criterion. It had regard to its acceptance that there was a real chance that on his return to Sri Lanka the Applicant would be arrested and charged under the I&E Act for illegal departure and under the Navy Act for desertion and to its findings that there was a real chance that this would result in him being detained for a period, punished with a fine for illegal departure and “the withholding of pay and settlement of any debts, and discharge from the navy for desertion”. However it found that such treatment did not amount to significant harm. It also referred to its earlier findings that it did not accept that there was a real risk that the Applicant would be mistreated while held in custody. The Authority found that to the extent that the Applicant may be detained in crowded and unsanitary conditions, it was not satisfied that such treatment was intended to cause pain or suffering or extreme humiliation and found that it did not otherwise amount to significant harm within s.36(2A) of the Act.
Nor was the Authority satisfied that the fine for illegal departure, being discharged from the Navy, the withholding of pay owed and the obligation to pay outstanding debts amounted to significant harm within meaning of s.5(1) and s.36(2A) of the Act.
The Authority was not otherwise satisfied that there was a real risk of the Applicant suffering significant harm having regard, in particular, to the fact that it did not accept that he was ever involved in the claimed incident in August 2012.
The Authority affirmed the decision not to grant the Applicant a protection visa.
These proceedings
The Applicant sought review of the Authority’s decision in September 2016. At the time of his application, and thereafter, he was represented by the same firm of solicitors.
The application of September 2016 contained two grounds of review. The Applicant did not file an amended application as provided for in first court date orders or seek a variation of those orders. Nor did he file and serve written submissions 14 days before the hearing as was provided for in the orders of the court.
The First Respondent filed written submissions seven days before the hearing which addressed the two grounds in the application. Two days later, the Applicant filed submissions in which he formally abandoned the two grounds of review in his original review application. He sought, instead, leave to rely on a new proposed single ground of review which was set out and addressed in written submissions signed by counsel for the Applicant.
The First Respondent filed further submissions the day before the hearing in which the grant of leave to the Applicant to amend his application was opposed. In addition to referring to the “inordinate” delay, the First Respondent submitted that the proposed ground lacked merit and that as a grant of leave would prejudice the Minister and efficient use of the court’s time and resources, leave would be contrary to the interests of the administration of justice.
At the start of the hearing counsel for the Applicant formally sought leave to rely on a draft proposed amended application containing the following foreshadowed single ground of review:
The IAA has made findings so unreasonable that no reasonable person would have made them.
Particulars
The IAA has made findings regarding the Sri Lankan legal system and likely penalties the Applicant will face with insufficient foundational material as per the decision of BTW17 v Minister for Immigration and Border Protection [2018] FCAFC 10 at [29][30].
The First Respondent maintained his opposition to leave being granted. However the parties agreed that the hearing would proceed on the basis of submissions in relation to both the leave application and the merits of the proposed ground of review and that if leave was granted, the court would consider the ground of review without the need for a further hearing.
The application for leave to rely on a proposed amended application
The First Respondent submitted that under r.7.01 of the Federal Circuit Court Rules 2001 (Cth) (the Rules), in considering whether to allow an amendment to a document, the court may have regard to a variety of factors including the length of and reason for the delay in making the application, any prejudice to the opposing party and the merits of the proposed ground of review. This was not disputed by the Applicant.
Under the orders of 28 November 2016 any amended application was to be filed by 6 January 2017. However in written submissions filed on 21 March 2019 Mr Bodisco, counsel for the Applicant, stated that he had only “recently” become aware of the decision in BTW17 v Minister for Immigration and Border Protection (2018) 258 FCR 511; [2018] FCAFC 10 which was relied on in support of the proposed ground.
As the First Respondent pointed out, the application for leave was not made by way of an application in a case. More significantly, it was not supported by an affidavit explaining the delay or otherwise supporting the application.
In oral submissions counsel for the Applicant explained that in light of BTW17 the Applicant’s position had to be considered and instructions obtained from the Applicant. This was said to have been “underway” at the time the Applicant was to have filed pre-hearing written submissions.
The application to amend was made some 26 months outside the time provided for in the orders of the court and only six days prior to the hearing. The delay was extensive. Further, it occurred in circumstances where no notice was given to the First Respondent before his pre-hearing submissions were filed (on time).
The Full Court’s judgment in BTW17 was delivered on 1 February 2018, over 13 months prior to the application for leave to amend. Such explanation as was provided by counsel was incomplete and rather unsatisfactory. The Applicant has been represented by the same solicitors since the judicial review application was filed. However the solicitors did not seek a variation of the consent orders, provide evidence to support the application, file written submissions on time or notify the First Respondent of their intention to seek leave to rely on an amended application before the date on which First Respondent was to file submissions.
In initial pre-hearing submissions the First Respondent had proceeded on the basis that the Applicant would be agitating only the grounds of review in his application. Time was spent and costs occurred in considering and responding to the original grounds of review which were subsequently abandoned. After the filing and service of the Applicant’s (late) submissions, the First Respondent (appropriately) took steps to brief counsel at a very late stage in the proceedings having been put in a position where it was necessary to respond to an entirely new case with very little notice.
While I accept that there was prejudice in the additional costs and time spent by the First Respondent, that can be addressed, at least to some extent, by an order for costs. These matters are nonetheless of concern. They weigh against the grant of leave.
I bear in mind the remarks in BYM16 v Minister for Immigration & Anor [2017] FCCA 2445 at [7] that where “an opportunity to amend has already been given, but eschewed, and there is no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive”. On the other hand, as observed by Judge Kendall in EOW18 v Minister for Home Affairs [2019] FCCA 3554 at [66], an applicant for a protection visa should not be prejudiced by the action (or inaction) of his representatives.
I note that if I refuse leave, the abandonment of his original grounds of review would leave the Applicant with no basis on which to pursue his judicial review application.
As to the submission that the making of a very late application to amend affects the timely disposition of applications for judicial review (see ABT17 v Minister for Immigration & Anor [2018] FCCA 658 at [5]) and the efficient use of this court’s time and resources, had an adjournment been necessary, that would have been so. The prompt action of the solicitors for the First Respondent in filing pre-hearing submissions to address the proposed new ground of review avoided that consequence and additional costs in that respect.
Counsel for the Applicant submitted that the proposed ground “advances the issue raised in the originating Application as filed” (apparently to suggest that the amendment was minor and/or the prejudice minimal). This argument appeared to be put on the basis that the abandoned grounds and the proposed ground concerned the Applicant’s claim to be a deserter from the Sri Lankan Navy. However the original application asserted a failure to deal with the full integers of the Applicant’s claim on the basis that by directing itself to country information concerning deserters from the army who received an amnesty, the Authority had failed to consider the claim advanced by the Applicant that he would be detained and face a risk of harm emanating from the “outstanding and unresolved charges arising from his desertion from the army (sic)”. It was also pleaded that s.473DE of the Act was breached in respect of the new material obtained after the delegate’s decision which related to the attitude of the Sri Lankan authorities towards military deserters.
In contrast, the proposed ground of review is that the Authority made findings that were so unreasonable that no reasonable person would have made them in that it made findings regarding the Sri Lankan legal system and likely penalties the Applicant will face with insufficient foundational material. While this proposed ground involves consideration of material in the courtbook or in the Authority’s decision that may also have been of relevance to the abandoned grounds of review, it raises a completely new legal issue.
As to the merits of the proposed ground, I have borne in mind that leave to amend should not be granted if the proposed ground is unarguable, futile or has no reasonable prospects of success (see SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [48]).
The proposed ground involves an assertion that the Authority made findings with insufficient foundational material. If made out, such assertion could go to show legal unreasonableness in the sense considered in BTW17. On a reasonably impressionistic view, I am satisfied that such ground cannot be said to be unarguable in the present case.
Despite the factors that weigh against the grant of leave and my concern about the procedural deficiencies in the approach taken for the Applicant, I consider that, on balance, it is appropriate to grant the Applicant leave to rely on the proposed amended application. However, for the reasons that follow, the ground is not made out.
The ground of review
The ground of review in the draft amended application is set out at [34] above.
As explained in pre-hearing written submissions, the essence of the Applicant’s contention is that the factual finding the Authority made in paragraphs 26 of its reasons (that s.71 of the Sri Lankan Navy Act provided for the punishment of death for a deserter only in circumstances where the person had deserted to the enemy) was a finding about the state of foreign law made without evidence from a qualified lawyer in the jurisdiction in question. It was submitted that by making such finding in those circumstances, the Authority had made a finding so unreasonable that no reasonable person would have made it.
However the Applicant also appeared to take issue with other findings in paragraphs 26 and 27 of the Authority’s reasons (set out at [14] above) on the basis that no attempt had been made by the Authority to ground those findings in opinions by those charged with having some expertise in Sri Lankan law. It was also suggested that an assumption ran through what was described as the Authority’s “inexpert opinion on matters as grave as those relating to the application of the death penalty”, namely that the Sri Lankan authorities had been lenient in the past.
The Applicant referred to the discussion of legal unreasonableness in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and to the remarks of the Full Court of the Federal Court in Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486; [2017] FCAFC 172 at [34]-[36] in relation to illogicality, irrationality and legal unreasonableness.
In particular, the Applicant sought to rely on the approach taken in BTW17 in support of the proposition that the Authority’s findings were legally unreasonable against the background of the information that was before it.
The Applicant pointed to the fact that in BTW17 there was information before the Authority relating to whether the death penalty for some serious crimes (such as murder) provided for in Sri Lankan legislation was in fact imposed. There was information that no death sentences had been carried out in over ten years and that Sri Lanka was abolitionist in practice. That information had been relied on by the Authority in BTW17. However there was also information before the Authority that the president of Sri Lanka had announced an intention to implement the death penalty and to the effect that whether he would have parliamentary support to do so was unknown (see BTW17 at [27]).
Against that background, the Federal Court found in BTW17 (at [28]) that it was not a reasonable conclusion that there was no real risk that the appellant would be subject to the death penalty.
The Applicant relied on the following remarks of the Court in BTW17 at [29]-[30]:
29. Particularly in circumstances where the consequences of a conclusion are so serious, there is a paucity of information leading to that serious conclusion. The possibility of implementation of the death penalty has always and logically assumed importance in Australian jurisprudence and legislation. Although in dissent, Kirby J made the following remarks, with which there could be little dispute, in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 (at [134]) that ‘[w]here there is any risk of death or disappearance, assumption is not good enough. Express findings must be made’. While the DFAT report reported that, as at January 2017, there was no indication that parliamentary approval would be provided, this was the slimmest of information on which the Authority could act.
30. There was insufficient clear foundational material as to the Sri Lankan legal system and the state of affairs as between the presidential announcement and Parliament to warrant reasonably reaching the conclusion that the appellant was exposed to no real risk as to the death penalty.
The Applicant contended that, similarly, in this case the Authority had made a finding about his exposure to a serious penalty under the Sri Lankan Navy Act without sufficient foundational material and that in doing so it had made a finding that was so unreasonable that no reasonable person would have made it.
In oral submissions the Applicant elaborated on his concern that the Authority was effectively relying on its own assessment as to the law in Sri Lanka. Although it was acknowledged that the Authority was not bound by the rules of evidence (and see s.473FA(2) of the Act), it was submitted that it was legally unreasonable for the Authority to proceed on the basis of what, it was suggested, might be regarded as a statement of opinion by the Authority as to the state of the law in Sri Lanka and in relation to whether or not the applicable provision in the Navy Act would apply to the Applicant’s circumstances.
It was also submitted that in so far as the Authority had referred to reports about what had been done in the past in relation to deserters, those reports provided no information about what kind of legal action would be undertaken by the Sri Lankan authorities in the future. The Applicant submitted that it was insufficient for the Authority to rely on information from the Sri Lankan Defence Ministry as to what they would do and what available penalties they would apply in relation to deserters. It was submitted that the foundational material had not been established or, at least, had not been established to the requisite standard that was to be expected of an Australian tribunal applying Australian law in considering the real chance test and Australia’s international obligations with respect to the death penalty.
In response to the ground as pleaded, the First Respondent submitted that, unlike the situation in BTW17, in this case the Authority had relied on Sri Lankan legislation which prescribed the death penalty for desertion only where the person had deserted to the enemy. The First Respondent pointed out that the Sri Lankan Navy Act was before the Authority as part of the review material. It had been referred to by the delegate in her decision. It was submitted that the Authority was required to have regard to this material under s.473DB of the Act and that it had done so in paragraphs 26 and 27 of its reasons. The First Respondent contended that the Authority was not required to seek out the expert opinion of a Sri Lankan lawyer before it could consider and apply the provisions of the Navy Act to the particular circumstances of the Applicant in reaching the state of satisfaction it described in paragraph 26 of its reasons. It was pointed out that nothing in Part 7AA of the Act imposed such an obligation and it was contended that s.473FA(2) in fact suggested otherwise. It was submitted that, contrary to the Applicant’s contention, the Authority was not stating an opinion in the impugned parts of paragraphs 26 and 27, but rather was stating a factual matter as to what the Navy Act specified.
The First Respondent also pointed out that, in any event, there was a separate and independent basis for the Authority’s conclusion that any punishment to which the Applicant would be subject under the Navy Act would not amount to persecution. The Authority had concluded that any persecution feared by the Applicant by reason of the application of that law would not involve systematic and discriminatory conduct for the purposes of s.5J(4)(c) of the Act, because it was a law of general application that applied to all Sri Lankan deserters and the evidence did not suggest that it was selectively enforced or applied in a discriminatory manner.
Counsel for the First Respondent acknowledged that in BTW17 the Federal Court had suggested that on the information before the Authority there were several obvious further inquiries that were necessary in relation to the serious issue before it. It was submitted however, that in this case the Authority had made further inquiries (apparently exercising its power under s.473DC(1) of the Act) to obtain new information dated after the delegate’s decision, which related to the attitude of the Sri Lankan authorities towards military deserters who had travelled overseas and also to a possible change in attitude on the part of the authorities towards military deserters. It had taken this information into account.
In so far as the Applicant appeared to take issue with the Authority’s reliance on country information referred to in paragraph 27 of its reasons, the First Respondent submitted that the country information in question was cited in relation to the issue of possible further amnesties for desertion and the leniency the Sri Lankan authorities had shown in the past in relation to penalties other than the death penalty, and had not related to the possibility of the death penalty being imposed on a deserter from the Navy.
Consideration
As pointed out in Gupta at [36] and as cited in BTW17 at [21], the “applicable standard” as to unreasonableness was summarised in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [44] as follows:
In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]):
“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221 [47].
In this case the Applicant’s argument was that on the information before the Authority, the standard of satisfaction could not reasonably be reached in relation to the Authority’s findings about the Sri Lankan legal system and the likely penalties the Applicant would face. This argument appeared to be put on the basis that, as was found in BTW17 at [27]–[30] (in relation to implementation of the death penalty where such a sentence was an available penalty or had been imposed), in this case there was insufficient clear foundational material as to the Sri Lankan law and the likely penalties for Navy deserters to justify the Authority reasonably reaching the conclusion that it was not satisfied that the Applicant would be executed or exposed to some other serious penalty for desertion. In particular, it was contended that in the absence of expert legal opinion there was a paucity of information leading to the Authority’s “serious conclusion” in relation to the imposition of the death penalty.
However, while I have borne in mind the remarks of Kirby J in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545; [2005] HCA 29 at [134] and of the Full Court of the Federal Court in BTW17 at [29] in relation to the need for express findings and sufficient foundational material where there is the possibility of implementation of the death penalty, the factual circumstances and the Authority’s decision in BTW17 differed significantly from the present case.
BTW17 concerned a decision of the Authority in relation to an appellant who, the Authority accepted, had shot a gang member in 2011, had been arrested for attempted murder, spent 13 months on remand and, while released on bail, had failed to report to the police as directed and left Sri Lankan illegally. It was in those circumstances that the appellant had claimed there was real chance that he would face the death penalty in Sri Lanka as a result of the offences he had committed.
As the Applicant noted in these proceedings, the Authority in BTW17 had regard to a 2014 Amnesty International Report which indicated that while sentences of death had continued to be imposed in Sri Lanka for some serious crimes, no death sentences had been carried out for over ten years and Sri Lanka was abolitionist in practice, and also to a 2017 DFAT Report which stated that while Sri Lanka retained the death penalty for murder and drug trafficking, it had not carried out any executions since 1976, although death sentences had been handed down. The Authority in BTW17 had noted a 2015 statement by the Sri Lankan President indicating that he would implement the death penalty from 2016 should he obtain parliamentary approval to do so and had observed that, according to DFAT, there had been no indication as to whether such parliamentary approval would be provided.
The Full Court of the Federal Court found in BTW17 (at [27]) that the Authority’s reliance on the historical position:
… fails to address the most recent fact actually known in the material expressly relied upon, namely that the President had announced (more recently than the Amnesty International Report) an intention to implement the death penalty from 2016. The earlier historic material, which led to the conclusion that it was unlikely the death penalty would be imposed or more relevantly, implemented, had to be evaluated as against the new Presidential announcement which was quite to the contrary on its face. Amidst all of this, there are no indications of what the true state of the law is in Sri Lanka, that is, whether or not the President can implement the death penalty and the extent to which, if any, he would require Parliamentary approval to do so, let alone whether the fact that parliamentary approval had not been given at the time of the DFAT report meant that it could be assumed that such approval would not be given at a relevant foreseeable future date which could affect the appellant. Certainly the content of the DFAT report cannot be taken as a statement that Parliament had declined to give any approval which might be necessary for implementation of the death penalty. It does not say that. The better reading is that the President sought to reintroduce it and at the time of the DFAT report it was unknown whether or not he would have parliamentary support to do so.
As indicated, the Court concluded in BTW17 (at [28]) that:
It is not a reasonable conclusion against that background that there is no real risk the appellant would be subject to the death penalty. The President has indicated he intends to reintroduce it and the position of Parliament is unknown. These events have taken place at a point in time after the Amnesty International report and in apparent response to public concerns and media reports of violent crime. The information as to the number of people on death row whose death sentences had not been executed and that Sri Lanka was effectively abolitionist in practice logically had to give way to the most recent fact – the President announcing that he intended to reintroduce the death penalty. The fact that this had not occurred as at the time of the DFAT report fell well short of a reasonable basis on which to conclude there was no real risk that the appellant might be exposed to a death sentence.
It was also in those circumstances that the Federal Court had observed in BTW17 (at [19]) that there were “several obvious further enquiries which were necessary” to be made by the Authority “on such a serious issue” before making a decision that there was no real risk of implementation of the death penalty for the appellant (such as in relation to the actual state of the law, the power of the President, the relevant power and role of parliament and to what extent (if any) these matters had been publicly developed or discussed since the President’s announcement). It was, however, said to be unnecessary for the Court to decide the appeal in BTW17 on a failure to inquire basis. It expressly did not do so.
However in this case, in contrast to the situation considered in BTW17, what was in issue initially was whether the death penalty was an available sentence for deserters from the Sri Lankan Navy. There is no evidence that there was a conflict between historical and more recent information before the Authority about the availability of the death penalty in relation to deserters from the Navy. The Authority not only considered an extensive body of country information about the treatment of naval deserters (see [14] above), it also addressed the Applicant’s specific claim to fear the imposition of the death penalty as a Navy deserter by reference to the Sri Lankan Navy Act. The Authority stated in paragraph 26 of its reasons that that legislation provided (in s.71) for the punishment of death for a navy deserter only in circumstances where the person had deserted to the enemy. The Authority found that there was no evidence, or any claim, that the Applicant was suspected of deserting to the enemy. It also had regard to the fact that the Applicant had deserted from the Navy in September 2009, which was well after the May 2009 defeat of the LTTE in the civil war. It was in those circumstances that the Authority was not satisfied that there was a real chance that the Applicant would be executed for his desertion from the Sri Lankan Navy.
Given this finding, it was unnecessary for the Authority to consider whether, if applicable to the Applicant, a sentence of death would be implemented.
In so far as the Applicant’s concern is with the Authority’s finding in paragraph 26 of its reasons that it was not satisfied that there was a real chance that the Applicant would be executed for desertion, there was a clear foundational basis for such finding in the Authority’s reliance on legislative provisions in the Sri Lankan Navy Act.
The Applicant’s contention that the Authority lacked a sufficient evidentiary foundation to make a finding about what the Navy Act in the absence of expert evidence from a Sri Lankan lawyer was not put in terms of an obligation on the Authority to make inquiries, but rather on the basis that such an approach in itself demonstrated and amounted to legal unreasonableness. However there was no obligation on the Authority to obtain an expert opinion. The rules of evidence do not apply in relation to the Authority. On the contrary, s.473FA(2) of the Act provides that in reviewing a decision the Authority is not bound by technicalities, legal forms or rules of evidence. Nothing else in Part 7AA of the Act suggests that any evidentiary requirements that might apply elsewhere (for example in a court in relation to a question of proof of foreign law) would or should apply to reviews conducted by the Authority.
As the First Respondent submitted, I accept that the Authority was entitled to read the law of the Applicant’s home country and to make findings in that respect. It did so. There was an evident and intelligible justification for its conclusion. This was not a case in which there was a paucity of information leading to the conclusion that the Applicant did not face a real chance of execution for desertion such as to establish legal unreasonableness.
In so far as the Applicant intended to submit that in every case in which an applicant claimed to fear the death penalty, expert opinion was necessary in relation to the law of the country of origin, I am not satisfied that this is so. There is no evidence of any claim or suggestion in connection with the visa application, the review or in these proceedings that s.71 of the Navy Act (which was not in evidence) was not in fact as stated and understood by the Authority, or that such law was ambiguous or lacking in clarity. It was also not suggested that on the information before the Authority there was evidence that the death penalty was in fact a possible penalty for naval deserters other than those who deserted to the enemy or that such a claim was made when the delegate put to the Applicant that the most that he could be punished with for his desertion was a jail sentence.
If the Applicant’s contentions are intended to suggest that the Authority’s failure to make inquiries contributed to the asserted legal unreasonableness, as the First Respondent pointed out, the Authority exercised its power, apparently under s.473DC(1) of the Act, to obtain new information about the attitude of the Sri Lankan authorities towards military deserters on the basis that the Applicant was a member of this class. It obtained information relevant to the current attitude of the authorities towards military deserters who had travelled overseas and to a possible change in attitude on the part of the authorities towards military deserters. It was satisfied that there were exceptional reasons to justify considering that information. In other words, it did precisely what was contemplated in BTW17 at [19].
Notably, in contrast to BTW17, this was not a case in which there is any suggestion that there was information before the Authority that suggested that, notwithstanding the provisions of the Navy Act about the death penalty, there was some contrary recent information which revealed that there was a possibility that the death penalty may be imposed on deserters from the Navy other than those who deserted to the enemy.
In so far as the Applicant took issue with the Authority’s findings in paragraph 27 of its reasons and its reference to remarks of Sri Lanka’s Defence Ministry (apparently relying on an analogy with BTW17), the Authority obtained and had regard to recent information which related to whether the prescribed punishment of imprisonment, a less severe punishment or, indeed, any penalty, would be imposed on a naval deserter (other than a deserter to the enemy). It was that information to which the Authority referred in paragraph 27 of its reasons.
The Authority found that, in circumstances other than desertion to the enemy, the Navy Act provided for punishment of deserters by “rigorous imprisonment” or “any less severe punishment”. There is no evidence that this finding was contrary to the provisions of the Navy Act or other relevant country information. This was consistent with the reference in the delegate’s decision to the fact that the Navy Act provided non-specific penalties for desertion, except in cases of desertion to the enemy, and that under the Penal Code desertion was punishable by two years imprisonment, a fine or both. There was also evidence that the government periodically offered amnesties to pardon and discharge deserters from all branches of the military. It has not been shown to be legally unreasonable for the Authority to consider the available penalties for deserters specified in Sri Lankan legislation without reference to expert legal opinion.
Further, the Authority did not fail to have regard to the most recent information in the material it relied upon (cf. BTW17). The Authority recognised that the Sri Lankan Defence Ministry had indicated in July 2016 that it would take legal action against Navy deserters who had failed to be discharged in a recent amnesty period, that there would be no further amnesties and also that the recent reports it considered did not provide any information about what kind of legal action would be undertaken by the authorities in the future. This information did not relate to the implementation of the death penalty in relation to deserters, but rather to other penalties for deserters.
In contrast to BTW17, the Authority addressed the issue of whether a Navy deserter (other than a deserter to the enemy) would simply be discharged without penalty or might be subject to a prison sentence in light of the most recent information. It gave reasons for its lack of satisfaction that there was a real chance that the Applicant would be sentenced to a prison term or compelled to return to service with the Navy. The cited country information was not in evidence before the court. However it has not been established that there was insufficient foundational material for the Authority’s findings as to the Sri Lankan legal system and the likely penalties the Applicant would face. It did not make any assumption about or based on past leniency, whether in relation to the death penalty or other penalties. It made express findings.
Indeed, it accepted that, despite past leniency and practice, having regard to the recent statements by the Sri Lankan Defence Ministry there was a real chance that as the Applicant had not returned during the amnesty period it was likely that, in addition to being discharged from the Navy, he would not receive any outstanding salary payments owed to him and would have to settle any debts he owed to the military.
The Authority considered whether such consequences would amount to serious or significant harm. There was an evident and intelligible justification for the Authority’s findings in this respect. The decision was within the range of possible, acceptable outcomes which are defensible in respect of the facts and law (see Li at [105] and Singh at [44]). In contrast to the situation in BTW17, it has not been established that there was insufficient foundational material in the Sri Lankan legislation and country information in relation to the Sri Lankan legal system and likely penalties. Legal unreasonableness has not been established.
As pointed out by the First Respondent, the Authority also made a more general independent finding (unaffected by any suggested error) that the penalties for desertion under the Navy Act would result from a law of general application which would not amount to discriminatory conduct constituting persecution.
While judgment was reserved in this matter, it was brought to the court’s attention that this was a case which may be affected by the decision of the High Court in BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091; [2019] HCA 34. Although the Applicant had not ultimately raised an issue in relation to the s.473GB certificate, the parties were given the opportunity to provide further submissions in relation to the implications, if any, of BVD17 or other relevant recent Federal Court or High Court cases. They did not take this opportunity.
As it has not been established that the Authority fell into jurisdictional error in the manner contended for by the Applicant, the application should be dismissed.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 12 June 2020
0
17
3