CQS18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 25
•16 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CQS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 25
File number(s): MLG 1405 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 16 January 2025 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizens of Sri Lanka – refusal of Safe Haven Enterprise visa – whether constructive failure to exercise jurisdiction – whether proper formation of required state of satisfaction – whether illogicality or lack of an intelligible justification – whether denial of procedural fairness in failing to consider a claim or substantial argument – whether material jurisdictional error Legislation: Migration Act 1958 (Cth) ss 36, 46A, 65, 414, 474, 476 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221
AVJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1056
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196
BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41
Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173
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 & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
ETA067 v Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003; (2018) 360 ALR 228
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Ibrahim v Minister for Immigration and Ethnic Affairs [2000] FCA 1309; (2000) 63 ALD 37
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225
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
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 177 ALD 464; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZZGE v Minister for Home Affairs [2019] FCAFC 72
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 51 FLR 325; (1981) 34 ALR 639
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
Syed v Minister for Immigration and Border Protection [2017] FCA 887
SZIMP v Minister for Immigration and Citizenship [2009] HCASL 185
SZMIP v Minister for Immigration and Citizenship [2009] FCA 217
SZUXN v Minister for Immigration and Border Protection & Anor [2016] FCA 516; (2016) 69 AAR 210
Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225; (2019) 367 ALR 465
WZATI v Minister for Immigration [2014] FCCA 2750
WZATI v Minister for Immigration and Border Protection [2015] FCA 923
XFZC v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1162
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of last submission/s: 11 April 2023 Date of hearing: 11 April 2023 Place: Perth Counsel for the Applicants: Mr M Crowley Solicitor for the Applicants: AUM Lawyers Counsel for the First Respondent: Ms E Hoiberg Solicitor for the Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1405 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CQS18
First Applicant
CQT18
Second Applicant
CQU18 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
16 JANUARY 2025
THE COURT ORDERS THAT:
1.The originating application filed 22 May 2018, as amended by an amended originating application filed 8 February 2023, 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 amended originating application for judicial review (“Amended Judicial Review Application”) lodged by the first applicant, CQS18, on 8 February 2023, under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) to review a decision of the then Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the then Minister for Immigration and Citizenship, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”), to refuse to grant CQS18 a Subclass 790 Safe Haven Enterprise (Class XE) visa (“SHE Visa”).
The second, third and fourth applicants in the Judicial Review Application are CQS18’s wife and two sons respectively. In these Reasons for Judgment reference will only be made to the first applicant, CQS18, unless otherwise necessary.
All references to the Migration Act in these Reasons for Judgment are to the provisions therein as they were at the time of the Tribunal Decision.
At hearing the Court Book (“CB”) was marked as Exhibit 1.
BACKGROUND
The relevant background facts are as follows:
(a)CQS18 is a Sri Lankan national: CB 5, 9 and 58;
(b)CQS18 arrived in Australia on 28 June 2012: CB 73;
(c)following earlier administrative and judicial processes (the outcomes of which were mainly adverse to CQS18: see CB 257 and 261-262; WZATI v Minister for Immigration [2014] FCCA 2750 (“WZATI – FCCA”) and WZATI v Minister for Immigration and Border Protection [2015] FCA 923 (“WZATI – FCA Appeal”)), on 13 April 2016 the Minister lifted the bar in s 46A of the Migration Act allowing CQS18 to lodge a further protection visa application: CB 443;
(d)on 23 September 2016 CQS18 applied for the SHE Visa;
(e)on 16 February 2017 CQS18 attended an interview with a delegate of the Minister’s Department (“Delegate Interview”), and provided post interview submissions to the Delegate on 28 February 2017 (“CQS18’s Delegate Submissions”): CB 414 and 446;
(f)on 10 April 2017 the Delegate’s Decision was to refuse to grant CQS18 a SHE Visa: CB 437-460;
(g)on 13 April 2017 CQS18 applied to the Tribunal for review of the Delegate’s Decision: CB 461-468;
(h)on 20 July 2017 CQS18 provided submissions dated 20 July 2017 the Tribunal (“CQS18’s Tribunal Submissions”): CB 495-502;
(i)on 3 August 2017 CQS18 attended an almost four-hour Tribunal hearing by videolink with his representative and with the assistance of a Tamil interpreter: CB 520-523;
(j)on 16 August 2017 CQS18’s representative made a written request for an extension of time to provide further submissions to the Tribunal: CB 527, and an extension having been granted: CB 529, on 4 September 2017 provided the further submissions to the Tribunal: CB 532-538;
(k)on 19 April 2018 the Tribunal affirmed the Delegate’s Decision to refuse to grant CQS18 a SHE Visa: CB 542-586;
(l)on 22 May 2018 CQS18 filed a judicial review application in the Melbourne Registry of this Court (then styled the Federal Circuit Court of Australia);
(m)on 14 June 2022 a Registrar of the Court made orders that the proceedings be transferred to the Perth Registry of the Court and that the judicial review application be listed for final hearing; and
(n)on 8 February 2023 CQS18 filed the Amended Judicial Review Application.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal commenced by setting out the:
(a)background to the application for review: CB 543 at [1]-[7];
(b)criteria for a SHE Visa: CB 543-544 at [8]-[13]; and
(c)mandatory considerations the Tribunal needed to take into account: CB 544 at [14].
In the Tribunal Decision the Tribunal then summarised CQS18’s claims and evidence at CB 545-550 at [17], including the following:
(a)he left Sri Lanka because he fears he will be attacked or killed due to his previous involvement with the LTTE;
(b)he had worked for the LTTE from 1994-1997 whilst he was employed at a shop and he did not think he had any choice but to do these things for the LTTE and almost everyone in the Vanni region supported the LTTE. He feared that if he refused them they would accuse him of giving secrets to the Sri Lankan Army (“SLA”) and execute him;
(c)the LTTE had occupied CQT18’s (CQT18 is CQS18’s wife) family farm and CQS18 had no choice but to allow the LTTE to occupy this land;
(d)in 2002 CQS18 and his family moved to Jaffna due to concerns about safety and for improved job opportunities. In their visits to CQT18’s family CQS18 would sometimes speak with LTTE people and the LTTE knew he was living in Jaffna and asked him to work for them there. CQS18 did not, however, work for the LTTE in Jaffna;
(e)the SLA had been monitoring all persons who had relocated from CQS18’s hometown to Jaffna and so the SLA knew who CQS18 was and has a video of CQS18 participating in a protest (“Protest Video”) held in Jaffna;
(f)CQS18 was arrested by the Criminal Investigation Department (“CID”) in Colombo when he visited there to apply for a visa to enter the United Kingdom where he hoped to go for work. CQS18 was arrested together with three of his friends by the CID who suspected him of being a supporter of the LTTE, even though the local police did not. The CID was suspicious of CQS18’s visit to an area in Colombo and assumed he was part of the LTTE because he was from the Vanni and that he was in Colombo to be involved in LTTE activities;
(g)CQS18 was beaten by CID officers whilst detained and not given food or water and CID officers wanted him to sign a paper declaring that he was part of the LTTE. When CQS18 refused they continued to beat him and he feared that if he signed the paper he would be interrogated on the notorious 4th Floor of the CID building and would not return. CID released CQS18 only after taking his fingerprints and signature and after this incident CID visited him in his house in Colombo three times in week following a bomb blast a short distance away;
(h)in 2007 CQS18 was asked by the SLA to give them his motorbike and he refused. A friend of CQS18 also refused to give the SLA his (the friend’s own) motorbike and a few days later the friend was killed. CQS18 knows of about four people this happened to and he was worried the same would happen to him so he gave his motorbike to the SLA for 15 days. The SLA knew CQS18’s brother is a mechanic and so they went to CQS18’s brother to tell him that CQS18 must give them his motorbike. His brother lied to the SLA that CQS18 had sold the motorbike but the SLA did not believe him and said if CQS18 would not give them his motor bike they would kill him. So CQS18 gave the SLA his motorbike for a second time. CQS18 no longer owns the motorbike;
(i)in June and July of 2008, within a one month period, three of CQS18’s friends were killed by the SLA which accused them of being LTTE supporters, and anyone who supported the LTTE in 2006 and before was killed;
(j)in 2008 LTTE members left CQT18’S family’s property but left behind approximately four sea containers full of weapons which the SLA discovered and linked the title of the farm to CQT18’s mother. SLA questioned CQT18’s mother about the ownership of the property and who permitted LTTE to use the property and she told the SLA that CQS18 and CQT18 own the farm but that they were in India (but they were in Jaffna). The CID returned to CQT18’s mother’s home twice looking for CQS18 and he feared the SLA would execute him for permitting the LTTE to use the land;
(k)in mid-2008 a close friend of CQS18’s aunt who had worked for the Eelam People’s Democratic Party (“EPDP”) told CQS18 that the CID has the Protest Video and that it was not safe for him to stay in Jaffna. Despite there being many people at the protest there were only three or four people burning tyres and after hearing this warning CQS18 was very afraid as the Jaffna is a small place and it would be difficult to escape the CID easily, and CQS18 knew that other people that were helping the LTTE had already been killed;
(l)CQS18 obtained a clearance certificate to leave Jaffna, obtaining this at an office where he was not known and where they did not suspect him of being an LTTE supporter. The office for the clearance certificate is separate from the CID and the SLA and they were aware that CQT18 and the children would remain. At the time they did not have a system of sharing information. After CQS18 left for Colombo the SLA did not believe CQS18 was in Colombo and asked CQT18 and CQS18’s brother about his whereabouts and what happened to his motorbike. The SLA told CQT18 that CQS18 had “narrowly escaped”;
(m)in Colombo CQS18 did not report to the police but hid at a friend’s house whilst an agent assisted him to get a passport and visa and for safe exit through the airport. The agent knew CQS18 was in hiding and in Colombo without permission. CQS18 paid the agent 250,000 rupees. In India CQS18 stayed in hiding in Chennai as he was afraid of being identified as an LTTE supporter; he later brought CQT18 and the children to India because they were afraid to remain in Sri Lanka after the SLA questioned CQT18 about CQS18. CQT18’s aunt helped them leave. When CQS18 registered their names in Chennai he said he had not had involvement with the LTTE and that they had been displaced from Sri Lanka because of the war;
(n)CQS18 left India because there was no future for his family there and they had no status and lived as refugees. He had also heard that the Indian government was sending Sri Lankans back and he was afraid he would be deported back to Sri Lanka;
(o)as to the impact of the data breach described in the Data Breach Letter CQS18 had kept his whereabouts a secret, telling only his parents and some of his siblings and because of the data breach Sri Lankan authorities and others will now know he is in Australia. This has made things worse for CQS18 because the authorities will know he has asked for asylum in Australia and the Sri Lankan government will assume CQS18 is criticising it;
(p)CQS18 is unable to rely on the Sri Lankan government for protection because it is the Sri Lankan authorities including the SLA he fears persecution from;
(q)CQS18 has been absent from Sri Lanka for a number years and if he was to return he would be considered a terrorist because he is perceived as being an LTTE member. The SLA is looking for him in his hometown and if he returns to Sri Lanka the SLA could find him wherever he goes in Sri Lanka. His fingerprints and personal details are in the CID system. If CQS18 returns to the larger city in Sri Lanka he fears the EPDP will kill him for being an LTTE supporter and the EPDP could find him wherever he goes in Sri Lanka;
(r)CQS18’s brothers still live in Sri Lanka. They do not have problems with the SLA or the CID but if CQS18 were to live with them, they would also be at risk of harm for supporting him;
(s)in the north of Sri Lanka, there is still one SLA personnel to every four Tamil citizens and CQS18 fears the CID will listen into telephone calls and this will cause problems for people such as his brothers;
(t)CQS18 reads in Tamil newspapers that the Tamil people are unhappy that the government are not looking after their interests after the war, and unrest is starting to build;
(u)CQS18 has previously stated that he was not involved with the LTTE, and that it was his brother who was involved but he said this because he was scared. He was interviewed when he had only been in Australia for five days and his only contact with government people before that was in Sri Lanka where the SLA and CID killed people for being involved with the LTTE. As this was all he knew, he did not know what the Australian government would do to him if they knew he worked for the LTTE so he said that he did not and he was worried that they would think he was a terrorist if he admitted to involvement with the LTTE;
(v)in relation to his earlier protection visa application (as to which see WZATI – FCCA and WZATI – FCA Appeal):
(i)CQS18 only met the lawyer providing legal assistance once at the start and then only on the phone and CQS18 did not know if the lawyers were with the Department or private lawyers; and
(ii)at the then Refugee Review Tribunal CQS18 could not say anything new and he thought his protection visa would be refused if he said he was involved with the LTTE; and
(w)CQS18 is still very scared to be admitting to his involvement with the LTTE as he is still afraid that the Sri Lankan Government will find out about that involvement.
Thereafter in the Tribunal Decision the Tribunal:
(a)set out the information in CQS18’s statutory declaration dated 18 July 2017 which included information about CQS18’s SHE Visa claims and in which CQS18 acknowledged that there have been “inconsistencies in the information” he had provided at different points since his arrival in Australia, and repeated his claims concerning the reasons he did not mention his LTTE involvement: CB 550 at [18];
(b)noted that CQS18’s Tribunal Submissions contained further country information on:
(i)the treatment of Tamils and suspected LTTE supporters who return to Sri Lanka from abroad that are known to have sought asylum; and
(ii)passport and exit processes in Sri Lanka, and submitted that if he returned to Sri Lanka he would be known to have sought asylum in Australia due to the Data Breach and that the Data Breach is likely to result in increased scrutiny of CQS18 by the Sri Lankan authorities, leaving him vulnerable to arbitrary arrest and detention on his return to Sri Lanka;
(c)set out its consideration of CQS18’s political opinion claim as follows:
(i)in relation to CQS18’s employment in an ice-cream shop owned by the LTTE and CQS18’s subsequent involvement with the LTTE, finding as follows at CB 552-558 at [27]-[47]:
(A)CQS18’s evidence could have been more specific, was vague and this led the Tribunal to have serious doubts about the veracity of CQS18’s claims in this respect, and as to his general credibility;
(B)it did not accept as credible CQS18’s claim that he was uncertain of the role or independence of his lawyers or that he did not disclose his claims fully because he feared the consequences or because he did not have the opportunity on earlier occasions;
(C)it was difficult to believe that CQS18 did not disclose his claimed work for the LTTE at an earlier time for the reasons he provided; and
(D)in its consideration of Department of Foreign Affairs and Trade (“DFAT”) Country Information Report Sri Lanka (“2017 DFAT Report”), which was put to CQS18, it did not accept that CQS18 was a person in whom the SLA would have any interest or that CQS18’s work in the shop increased the level of risk he would imputed with an adverse political profile on return to Sri Lanka or that it added to his cumulative profile, and that he faced no real risk of significant harm on return to Sri Lanka on this basis;
(ii)LTTE occupation of CQT18’s family’s land finding at CB 558-560 at [48]-[57] that it did not accept that LTTE occupation of CQT18’s family’s land increased the level of risk CQS18 would be imputed with an adverse political profile on return to Sri Lanka, or that it added to CQS18’s cumulative profile, and that CQS18 faced no real risk of significant harm on return to Sri Lanka on this basis;
(iii)the protest at CB 560-562 at [58]-[65]:
(A)finding that given the “substantial shifting of claims” and the inconsistencies in CQS18’s evidence which raised serious doubts about the credibility of CQS18’s claims, it was not satisfied that he was a credible witness in respect of these claims; and
(B)not accepting that he was either warned about the Protest Video or that the CID was looking for him,
and that he faced no real risk of significant harm on return to Sri Lanka on this basis;
(iv)training at CB 562 at [66]-[68] finding that it did not accept that CQS18’s participation in the training:
(A)as a civilian that all young people were required to undertake at that time, conferred on CQS18 a profile as a person in whom the Sri Lankan authorities have any interest; or
(B)increased the level of risk that the CQS18 would be imputed with an adverse political profile on return to Sri Lanka, or that it added to the CQS18’s cumulative profile,
and that he faced no real risk of significant harm on return to Sri Lanka on this basis;
(v)arrest by CID at CB 562-564 at [69]-[75] finding that it did not accept that CQS18 had an actual or imputed LTTE or anti-government profile and that he was of no interest to the SLA for any reason, and that he faced no real risk of significant harm on return to Sri Lanka on this basis;
(vi)in relation to the motorbike at CB 564-565 at [76]-[80]:
(A)finding CQS18 had no actual or imputed LTTE or anti-government profile and that he was of no interest to the SLA for any reason; and
(B)that it did not accept that CQS18’s brothers who did not current have any problems with SLA or CID, would be at any real risk of significant harm if CQS18 were to live with them on return to Sri Lanka;
(vii)in relation to political activity in Australia: CB 565-566 at [81]-[85]:
(A)finding that CQS18 was not a person who the Sri Lankan authorities would be interested in as he does not fall into the category of persons who are regarded as LTTE fundraisers and propaganda activists, or those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE, or for any other reason; and
(B)not accepting that CQS18 was a person in whom the authorities have any interest on the basis of a political profile developed in Australia,
and that he faced no real risk of significant harm on return to Sri Lanka on this basis;
(d)set out its consideration of CQS18’s actual profile as a member or supporter of the LTTE, his imputed profile as an LTTE supporter as a person of Tamil ethnicity, and an imputed anti-government political profile as an asylum seeker in the West taking into account military presence/monitoring in the north of Sri Lanka: CB 566-571 at [86]-[99]; and
(e)affirmed the Delegate’s Decision not to grant CQS18 a SHE Visa: CB 583 at [152].
The single ground of the Amended Judicial Review Application is narrow in focus and the reasoning at CB 562-56 at [69]-[75] of the Tribunal Decision, set out hereunder (with footnotes omitted) , is relevant:
Arrest by CID
69.On the basis of the applicant’s consistent and detailed account at hearing, the Tribunal accepts the applicant went to Colombo in 2007 seeking a visa to the U.K. and registered his stay there with local police as required. Taking into account the applicant’s detailed account and DFAT advice of January 2017 discussed below and put to the applicant, that in the heightened security situation associated with the civil conflict many Tamils were detained under Emergency Regulations 2005 and the PTA, the Tribunal accepts the applicant was nevertheless detained by the CID in the Kochchikadai area of Colombo in 2007.
70.On the same basis, the Tribunal accepts the applicant was held by the CID for about 24 hours during which time he was questioned about his background in Vanni and intentions in Colombo seeking to establish if he was an LTTE member. The Tribunal accepts the applicant’s detailed evidence that while he told the police he was not working for the LTTE they indicated that they did not believe him, and wanted him to sign a confession but he refused to do this because “he was not in the LTTE”. The Tribunal accepts the applicant’s detailed and consistent evidence that he was mistreated by police who hit him and made him take off his shirt. The Tribunal accepts the applicant’s detailed and consistent account that his friends had told his wife he had been detained and his father-in-law’s sister in Negombo, formerly a nun in Australia, provided the CID with information about the applicant and told the police that the applicant “was only a family person who had gone to Colombo to go prepare to go overseas and had no connection with the LTTE.” As discussed further below, the Tribunal accepts the applicant was released after his fingerprints were taken and his personal details were recorded.
71.While the applicant stated that he had no further contact with the CID and he went to Jaffna four or five days later, when prompted he also stated that the CID checked on the applicant three times in Colombo, coming into the house, looking at everything, then departing without any further questioning. The Tribunal accepts the CID monitored the applicant’s stay in Colombo, but he was not arrested again or mistreated.
72.In considering whether the applicant’s detention in Colombo in 2007 for questioning about possible LTTE involvement is indicative that the applicant has an adverse profile that puts him at risk of persecution or significant harm in Sri Lanka, the Tribunal takes into account that the applicant was released from detention without charge and while he was monitored for the short period of his stay after his detention he was not arrested or mistreated again. The applicant argued that this was because of the intervention of his aunt, a high ranking nun. The Tribunal does not consider it is plausible that in the environment of heightened security of this period, as discussed below, the CID would release the applicant had they ongoing suspicions that the applicant had any connection to the LTTE or a pro-LTTE profile. As described by the applicant at hearing, the nun was called upon as a person whose testimonial would be trusted and to provide identification for the applicant. The Tribunal finds the applicant was released from CID detention because the authorities were satisfied he had no links to the LTTE.
73.In this consideration, the Tribunal has also taken into account that the applicant departed Sri Lanka legally under a passport in his own identity in 2008 using an agent who assisted him to get a passport and visa and for safe exit through the airport, and he told the Tribunal that he experienced no difficulties. The Tribunal notes the applicant claims that he hid in Colombo because he feared repercussions.
74.The Tribunal notes advice from DFAT put to the applicant that the Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters and had the opportunity to stop or arrest the applicant had he been of interest for security or criminal activities. The Tribunal has also had regard to country information provided to the Tribunal in the submission of July 2017 that exit processes were lax at that time, but notes that the Home Office information cited in this submission indicates that the process required that the Department of Immigration and Emigration (DIE) check passports against the DIE Border Control System database, which contained specific information about individuals suspected of terrorist activity by the State Intelligence Service or on a wanted list relating to court orders, warrants of arrest, escaping from detention, as well as information from Interpol and the State Intelligence Service computer system. The Tribunal draws from this information that had the applicant been of interest to the authorities as a person with significant LTTE connections, he would have been questioned by authorities.
75.On the evidence before it, the Tribunal does not accept the applicant had an actual or imputed LTTE or anti-government profile. The Tribunal finds the applicant was of no interest to the Sri Lankan authorities for any reason. Looking to the future, the Tribunal finds the applicant does not have a well-founded fear of persecution now or in the foreseeable future or a real risk of significant harm on return to Sri Lanka on this basis.
AMENDED JUDICIAL REVIEW APPLICATION
Ground of judicial review
The Amended Judicial Review Application contains a single particularised ground, as follows:
1A. The decision of the Administrative Appeal Tribunal affirming the delegate’s refusal to grant a protection visa was vitiated by a constructive failure to exercise jurisdiction in that the Tribunal did not form the state of satisfaction required by s 65 of the Migration Act 1958 (Cth), or was illogical or lacked an intelligible justification, or denied the applicants procedural fairness in failing to consider a claim or substantial argument.
Particulars
1A. A reason given for insubstantiating the risk posed to the first applicant was that the first applicant claimed to have left Sri Lanka on a passport issued in his own name [74] in 2008, and relies on DFAT country information from 2017 that Sri Lankan authorities maintained (then) ‘sophisticated intelligence’ on persons of interest.
2A. The applicant advanced a substantial, clearly articulated argument supported by contemporaneous country information to the effect that passport controls were then lax. And the Tribunal made reference to it at [74], but justified its conclusion that the first applicant would be ‘flagged’ were he of interest as consistent with the contemporaneous country information.
3A. The contemporaneous country information supported two premises–a person might be ‘flagged’ at the airport because they were: (a) the subject of a Court order, or (b) in ‘rare or specific’ cases the State Intelligence Service can inform of individuals suspected of terrorist activity and on a wanted list. But the first applicant did not claim to have been the subject of a Court order. And the Tribunal did not engage at all with the significant caveat on the second possibility.
Requirement for jurisdictional error
For present purposes it suffices to observe that
(a)this Court may set aside the Tribunal Decision 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) 177 ALD 464; (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); and
(b)the onus is upon CQS18 to establish jurisdictional error in the Tribunal Decision: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 (“Carrascalao”) at [47] per Griffiths, White and Bromwich JJ.
CQS18’s Submissions
Generally
CQS18 submitted that:
(a)in substance, the Tribunal’s reasoning proceeded from a premise that unless CQS18’s name appeared on the database (later identified as the Sri Lankan Department of Immigration and Emigration (“DIE”) Border Control System Database (“DIE Database”)), he was not of interest to the Sri Lankan authorities. Inverting that, the Tribunal reasoned that CQS18’s name would have appeared on the DIE Database were he of interest. The issue then becomes whether the country information supported that proposition;
(b)the 2017 DFAT Report is almost a decade after the relevant events, and it is not evident that it is directed to events a decade before;
(c)the precise references in the 2017 DFAT Report are not pinpointed but the Tribunal Decision at CB 555-557 at [42] includes [3.29] from the 2017 DFAT Report which is as follows:
Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony ... Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including due to separatist or criminal activities. Those on a watch list are not likely to be of interest ...,
(d)the DFAT country report series is regularly updated, annually or biennially. It is necessarily contemporaneous information. So much can be seen in any event from the context in other paragraphs proximate to [3.29] in the 2017 DFAT Report: at [3.25]: “There are currently no banned political parties and at [3.30]: “In the August 2015 parliamentary elections ...”;
(e)the 2017 DFAT Report supplies no rational foundation for conclusions to be drawn about an event a decade before its issuance;
(f)the Tribunal uses the 2017 DFAT Report to “falsify’ the contemporaneous country information supplied by CQS18 to the express effect that as at 2008 CQS18 would not necessarily be stopped at the airport in Sri Lanka even if he were of interest to the Sri Lankan authorities;
(g)that contemporaneous country information, contained in a 2013 published decision of the then Refugee Review Tribunal (“RRT”) in Case No 1215128 (“2013 RRT Decision”) was in the following express terms: CQS18’s Affidavit affirmed 2 February 2023 (“CQS18’s Affidavit”), Annexure ‘SG3’, p 207 (emphasis in original):
Exit procedures at the airport in Colombo
86. A UK Home Office COI report cites an August 2008 letter from the British High Commission (BHC) in Colombo which notes the lax security at Colombo Bandaranaike Airport and states that there are “concerns about corruption amongst staff at all levels, the quality of the staff conducting checks, screenings and searches, and the amount of training that they receive”. The BHC also reported:
As far as we have been able to establish, Immigration officers are notified [of bail/reporting conditions] only when court decides to impound the suspect’s passport or an arrest warrant is issued, and there is no other mechanism to ensure that the Immigration Officers are aware of such instances. Apart from these Court powers, Immigration Officers have no power in law to prevent persons embarking. The other method, which is rare and case specific, is that the State Intelligence Service (SIS) can inform Immigration Officers of individuals suspected of terrorist activity and those on a wanted list. Without court sanction the Immigration officers are powerless to put an individual in detention if they are otherwise satisfied that they have a right to enter or live in Sri Lanka (UK Home Office 2009, Country of Origin Information Report: Sri Lanka, June, Section 33).
87. This remained the case in 2011 (UK Home Office 2011, Country of Origin Information Report – Sri Lanka, 4 July, pp.142-144).
88. The UK Home Office reported in 2009 that the Department of Immigration & Emigration had access to an alert list which contained “information relating to court orders, warrants of arrest, jumping bail, escaping from detention as well as information from Interpol and the SIS computer system” There was an alert system on the DIE database based on this list which indicated that staff must refer the passenger to the police Criminal Investigations Unit (CID) or the SIS, although it did not provide any detail on the reason for the alert (UK Home Office 2009, Report of Information Gathering Visit to Colombo, Sri Lanka, UNHCR Refworld website 23-29 August, p.7 – accessed 24 August 2011). Nevertheless the same source noted in April 2009 that “there is no firm evidence that everyone who has ever been detained by the police or army is likely to be on the database” (UK Home Office 2009, Operational Guidance Note – Sri Lanka, April, p14; Immigration and Refugee Board of Canada 2010, LKA103344.E – Sri Lanka: Security controls at the international airport and ports, 28 January).
(h)the underlined parts of the above country information are independent, focussed evidence contradicting the conclusion reached in the Tribunal Decision;
(i)the UK Home Office information referred to was from the UK Home Office report titled “Sri Lanka: Country of Origin Information Report” dated 4 July 2011 (“2011 UK Home Office Report”) and:
(i)was expressly directed to the period post August 2010. At [25.18]: “A letter from the British High Commission (BHC), Colombo, dated 18 March 2011 noted that the exit procedure at the Colombo Bandaranaike Airport has not changed since an update was provided in the BHC letter dated 30 August 2010”: CQS18’s Affidavit, Annexure ‘SG2’, p 165 (emphasis added). The information relied upon by the RRT is extracts from the BHC letter; and
(ii)says [25.21] and [25.22] that, while checks are conducted, those checks would not necessarily “flag” a person in the position of CQS18 as claimed: CQS18’s Affidavit, Annexure ‘SG2’, p 166, and at [25.22] says:
25.22 A BHC letter dated 14 September 2010 noted:
“The Department of Immigration and Emigration (DIE) are notified only when a Court decides to impound the suspect’s passport or an arrest warrant is issued. The details of such persons would be placed on their alert or wanted list within their database. There is no other mechanism to ensure that the Immigration Officers are aware of such instances. Apart from these Court powers, Immigration Officers have no power in law to prevent persons embarking. The other method, which is rare and case specific, is that the State Intelligence Service (SIS) can inform Immigration Officers of individuals suspected of terrorist activity and those on a wanted list. Again the details of suspects would be put on the DIE database. Without Court sanction, Immigration officers are powerless to put an individual in detention if they are otherwise satisfied that they have a right to enter or live in Sri Lanka.”
(j)a person making the claims that CQS18 made would not appear on the DIE Database at all. Even if CQS18 were positively suspected of “terrorist activity” or on a “wanted” list, as at 2010, he would be flagged only in “rare or specific” cases; and
(k)the more specific and compelling information supplied by CQS18 was not falsified by the Tribunal’s alternative country information, even in its own terms. Even if it were, the Tribunal’s reasoning would have to confront the “rare and specific” exception. And in any event, it was not contemporaneous.
Jurisdictional error
CQS18’s submissions as to jurisdictional error were as follows:
(a)the Tribunal Decision discloses no attempt to resolve the differences between the competing country information. It simply “falsified” the country information supplied by CQS18 by reference to the 2017 DFAT Report. That exposed a failure to appreciate that there was a conflict at all;
(b)more fundamental though is that the 2017 DFAT Report did not speak at all to events in 2008. It supplied no rational basis for the Tribunal’s conclusion that CQS18 was of no interest to the Sri Lankan authorities. The 2017 DFAT Report spoke to the situation fully a decade later;
(c)even if that were not so, there was a key caveat in the country information – “rare and specific” – which the Tribunal simply ignores. The risk of harm state of satisfaction required under s 65 of the Migration Act demanded that the improbability be brought to account, but it was not brought to account;
(d)on established principle, the Tribunal Decision discloses error. Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”) is binding authority that the Tribunal constructively fails to exercise jurisdiction if it does not adequately “engage” with country information, and that is because if the Tribunal fails to form the state of satisfaction required by s 65 of the Migration Act will not have proceeded on a correct understanding of the basis of the claim advanced,: MZYTS [31]-[36] per Kenny, Griffiths and Mortimer JJ; and
(e)the case can also be approached through the lens of a failure to grapple with the case expressly advanced by CQS18, and thus a denial of procedural fairness. But in any event, the evidentiary basis for the Tribunal’s reasoning on this point was not supported by the evidence, and therefore lacked an intelligible justification (or was illogical).
Materiality
As to materiality CQS18 submitted that the Tribunal relied on the adverse finding as part of its chain of reasoning to insubstantiate a risk of harm demonstrates a mere possibility of a different outcome but for the error. The counterfactual would be: CQS18 would have been of “interest” and have left Sri Lanka on his own passport. After all, the Tribunal did in fact find that he has been monitored by the Sri Lankan authorities.
Minister’s Submissions
Generally
The Minister submitted as follows:
(a)to consider whether the Tribunal committed jurisdictional error, it is necessary to consider what submissions were made to the Tribunal, what material was before it, and what its findings were;
(b)the country information in issue was relevant to the Tribunal’s consideration of whether CQS18 would have a well-founded fear of persecution on return to Sri Lanka due to his arrest and detention by the CID in 2007;
(c)the Tribunal accepted that, in seeking to establish if he was an LTTE member, CQS18 was detained by the CID in an area of Colombo in 2007, that he had been held for about 24 hours and questioned about his background in Vanni and his intentions in Colombo, that he was mistreated by police, and that he was released after his fingerprints were taken and his personal details were recorded: CB 562-563 at [69]-[70]. The Tribunal also accepted that the CID monitored CQS18’s stay in Colombo, but that he was not arrested again or mistreated: CB 563 at [71];
(d)in considering whether CQS18’s detention in Colombo in 2007 was indicative that he had an adverse profile that puts him at risk of persecution or serious harm in Sri Lanka, the Tribunal took into account that CQS18 was released from detention without charge, and that while he was monitored for a short period of his stay after his detention, he was not arrested or mistreated again. The Tribunal did not accept CQS18’s explanation that this was because of the intervention of his aunt, a high ranking nun. The Tribunal did not consider it plausible that, in the environment of heightened security during this period, the CID would release CQS18 if they had ongoing suspicions that he had any connection to the LTTE or a pro-LTTE profile;
(e)rather, the Tribunal found that CQS18 was released from CID detention because the Sri Lankan authorities were satisfied he had no links to the LTTE: CB 563 at [72];
(f)the Tribunal stated that it had also taken into account that CQS18 had departed Sri Lanka legally under a passport in his own identity in 2008, using an agent to get a passport and visa and for safe exit through the airport, and that he told the Tribunal he experienced no difficulties: CB 563 at [73]. That is, CQS18’s ability to leave Sri Lanka legally on his own passport was another reason why the Tribunal was not satisfied that CQS18 had an adverse profile with the CID;
(g)the Delegate had found that, because CQS18 and his family had repeatedly stated that they departed Sri Lanka by air with no apparent difficulty, there was no evidence that CQS18’s circumstances prior to departing Sri Lanka supported the opinion that he had any LTTE profile or association: CB 448 at [58];
(h)in CQS18’s Tribunal Submissions at CB 501-502 at [30]-[33] CQS18 submitted that (footnotes omitted):
A letter from the British High Commission in Colombo outlines the procedure for departure from Colombo’s Bandaranaike Airport.
‘At the check-in desks, passengers have to produce their passports to airline staff and go through check-in procedures. Airline check-in staff routinely check the identity of the person against the passport details, the validity of the passport, and if the passenger has the appropriate visa for their country of destination or transit.’
It went on to state that;
‘The Department of Immigration & Emigration (DIE) are notified only when a Court decides to impound the suspect's passport or an arrest warrant is issued. The details of such persons would be placed on their alert or wanted list within their database. There is no other mechanism to ensure that the Immigration Officers are aware of such instances. Apart from these Court powers, Immigration Officers have no power in law to prevent persons embarking.’
Again, this information explains how it was possible for … [CQS18] to leave Sri Lanka on a valid passport and through the main airport without being stopped by the CID or other forces.
In a 2013 RRT case, the Member assessed the claims of an applicant who, like … [CQS18], had departed Sri Lanka on a valid passport in 2008. Based on the country information, the Member concluded that,
‘In some countries the ability to exit the country using one’s own passport through an international airport would be a relatively reliable test as to whether an individual was of any adverse interest to the authorities. However the evidence indicates that Sri Lanka does not fall into this category. Firstly I accept of exit procedures that the security at the airport was generally very lax at the time the applicant first left the country, and similarly when he left subsequently (UK Home Office 2009). I also accept that he was aware of that. Secondly, he did not fall into any category of person who would normally be prevented from departing. He was not on bail or reporting conditions, and was not suspected of terrorist activity by the State Intelligence Service or on a wanted list, a circumstance which is any case reportedly only rarely resulted in immigration officers at the airport being notified (UK Home Office 2009; UK Home Office 2011). Further, there is no reliable evidence that every person who was detained by the police or army was likely to be on the DIE database at the airport (UK Home Office 2009 p.14; IRBC 2010). For these reasons I do not infer from the applicant’s ability to openly exit Sri Lanka unhindered twice that he was not on CID and other official records [in] [Region 1].’
(i)CQS18’s Tribunal Submissions footnoted two documents: the 2011 UK Home Office Report and the 2013 RRT Decision. The website URL for both documents was cited in CQS18’s Tribunal Submissions, but the country information itself does not appear to have been provided to the Tribunal;
(j)at CB 563 at [73] the Tribunal expressly referred to the 2011 UK Home Office Report at the paragraphs cited in CQS18’s Tribunal Submissions, stating that “[t]he Tribunal has also had regard to country information provided to the Tribunal in the submission of July 2017 that exit processes were lax at that time”;
(k)the Tribunal then used information from both the 2017 DFAT report and the 2011 UK Home Office Report to draw the conclusion that, had CQS18 been of interest to the authorities as a person with significant LTTE connections, he would have been questioned by Sri Lankan authorities at the airport upon departure: CB 563 at [73];
(l)CQS18 appears to be contending that the Tribunal used the 2011 UK Home Office Report to “falsify” country information supplied by CQS18. But the 2011 UK Home Office Report was provided by CQS18 as country information in support of CQS18’s Tribunal Submissions;
(m)CQS18 contends that the Tribunal misconstrued the following passage from the 2011 UK Home Office Report:
Apart from these Court powers, Immigration Officers have no power in law to prevent persons embarking. The other method, which is rare and case specific, is that the State Intelligence Service (SIS) can inform Immigration Officers of individuals suspected of terrorist activity and those on a wanted list. Again the details of suspects would be put on the DIE database.
(n)it should be noted that this extract from the 2011 UK Home Office Report was not relied on CQS18 in CQS18’s Tribunal Submissions: CB 501 at [31];
(o)CQS18 submitted that the Tribunal did not pay proper regard to the statement that information provided by the State Intelligence Service (“SIS”) to Immigration Officers was “rare and case specific”. But it is not apparent from the Tribunal Decision that the Tribunal misconstrued this passage. The Tribunal found that the country information led to the conclusion that had CQS18 been of interest to the Sri Lankan authorities as a person with significant LTTE connections he would have been questioned by Sri Lankan authorities: CB 563 at [74];
(p)evidently, the Tribunal considered that a person with significant LTTE connections would be the kind of person who would be on a wanted list (particularly in around 2008) and therefore the subject of information by the SIS to Immigration Officers. It is not apparent that this conclusion was manifestly incorrect in a way that would amount to jurisdictional error;
(q)further, it is not the case that the Tribunal used the 2017 DFAT Report to “falsify” the earlier 2011 UK Home Office Report. It is evident from CB 563 at [74] that the Tribunal had regard to both pieces of information in reaching it decision;
(r)additionally, the 2017 DFAT Report, although prepared at a later date than the events in question, is not materially inconsistent with the 2011 UK Home Office Report, in that they both note that the Sri Lankan authorities maintain a “wanted” or “watch” list;
(s)in relation to the extract from the 2013 RRT Decision cited in CQS18’s Tribunal Submissions, this was a finding of the then-RRT in a different case. It was not “country information”. The RRT’s findings in a different case did not bind the Tribunal: Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 51 FLR 325; (1981) 34 ALR 639 at 647 per Deane J. In any event, the findings of the previous RRT appear to have been directed towards a different issue;
(t)insofar as CQS18 describes the 2013 RRT Decision as “contemporaneous country information” that submission should not be accepted;
(u)the passages from the 2013 RRT Decision now relied upon by CQS18 were not the passages put before the Tribunal in CQS18’s Tribunal Submissions: CB 501-502 at [33]. Central to this judicial review application is a consideration of the submissions and evidence as before the Tribunal, not any subsequent recasting of them: Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [33] per Bromwich, Thomas and Raper JJ; and
(v)in any event, it appears that the Tribunal did take account of information cited in the 2013 RRT Decision. At CB 563 [74] the Tribunal refers to the fact the DIE check passports against the DIE Database, which contained specific information about individuals suspected of terrorist activities by the SIS or on a wanted list relating to court orders, warrants of arrest, escaping from detention, as well as information from Interpol and the SIS computer system. At least some of this information appears to have come from the 2013 RRT Decision.
Requisite state of satisfaction
As to the Tribunal not forming the requisite state of satisfaction the Minister submitted that:
(a)MZYTS is not binding authority for the proposition that the Tribunal fails to exercise jurisdiction if it does not adequately “engage” with country information. Rather, it was found in that case that lawful determination of the state of satisfaction required under s 65 of the Migration Act involves a correct understanding of:
(i)the basis (or bases) on which a visa applicant says they have a fear of persecution in their country of nationality; and
(ii)how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded: MZYTS at [34] per per Kenny, Griffiths and Mortimer JJ;
(b)MZYTS is distinguishable because in that case that Tribunal had failed to refer to country information referred to in post-hearing submissions from MZYTS. Here, the Tribunal expressly made reference to a submission in CQS18’s Tribunal Submissions that exit processes were lax in 2008 and to the country information cited in support of that submission: CB 563 at [74];
(c)CQS18’s real complaint is that the Tribunal misconstrued the country information cited by CQS18. The Tribunal may constructively fail to exercise jurisdiction if it misconstrues the nature or effect of factual material in a way that affects the exercise of power: XFZC v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1162 at [47]-[48] per Hespe J; AVJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1056 at [39]-[41] per O’Bryan;
(d)here, even if the Tribunal misconstrued the 2011 UK Home Office Report, that did not affect the Tribunal’s exercise of its power under s 414 of the Migration Act to review the Tribunal Decision;
(e)the relevant country information was not provided in support of a claim to fear harm, rather, it was provided to disprove the hypothesis that CQS18 could not have been a person of interest to the Sri Lankan authorities because he was able to depart Sri Lanka lawfully in 2008;
(f)had the Tribunal construed the country information in the way contended for by CQS18, at best it would have resulted in a finding that CQS18’s ability to depart Sri Lanka without incident did not mean that CQS18 was not a person of interest. That is, the country information was equivocal. It did not prove that CQS18 was a person of interest. All it proved was that CQS18’s ability to leave Sri Lanka unnoticed was explainable either because of lax exit processes, or because CQS18 did not have an adverse profile; and
(g)the country information therefore went to an issue which could not have been determinative as to whether CQS18 had a fear of persecution.
Illogical or intelligible
As to whether the decision was illogical or lacked an intelligible justification, the Minister submitted:
(a)a decision may be unreasonable if it lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225 (“Li”) at [76] Hayne, Kiefel and Bell JJ. The question is whether a decision-maker could reasonably come to the conclusion reached: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 (“Stretton”) at [21] per Allsop CJ. The decision as a whole must be illogical or unreasonable to constitute jurisdictional error: Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225; (2019) 367 ALR 465 at [84]-[85] per Besanko, Banks-Smith and Colvin JJ;
(b)as to irrationality or illogicality giving rise to jurisdictional error, the Full Court of the Federal Court in MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] per Besanko, Farrell and Thawley JJ summarised the principles as follows:
A decision might be shown to be affected by jurisdictional error if:
(1)no rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ);
(2)there is no logical connection between the evidence and the inferences drawn: Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] (Perram, Farrell and Thawley JJ);
(3)there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132].
(c)for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown: 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. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in response to the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion: SZMDS at [131] per Crennan and Bell JJ; and
(d)for the same reasons as set out at [16(f)] above, the Tribunal’s treatment of the country information did not result in the Tribunal Decision as a whole being unreasonable, or illogical or irrational. The country information was not relevant to whether CQS18 was at risk of harm on return to Sri Lanka, only whether CQS18 could be at risk of harm notwithstanding that he was able to depart Sri Lanka without being questioned.
Failure to consider a claim
As to failure to consider a claim or substantial argument the Minister submitted that:
(a)in Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [34] per Reeves, O’Callaghan and Thawley JJ, the Full Court of the Federal Court noted that a Tribunal charged with review may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if, for example, it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
(i)a “substantial, clearly articulated argument relying upon established facts”: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) at [24] per Gummow and Callinan JJ, with whom Hayne J agreed at [95];
(ii)a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review”: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE (No 2)”) at [63] per Black CJ, French and Selway JJ; or
(iii)a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review”: ETA067 v Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003; (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ;
(b)a finding that the Tribunal has not considered a claim (in the sense of engaging in an active intellectual process) will not lightly be made and must be supported by clear evidence: Carrascalao at [48] per Griffiths, White and Bromwich JJ; and
(c)here it cannot be concluded that the Tribunal failed to consider a claim or a substantial, clearly articulated argument. The Tribunal expressly considered at CB 563 at [74] the claim made in CQS18’s Tribunal Submissions that CQS18 could have left Sri Lanka legally without being stopped even if he was a person of interest.
Materiality
As to materiality, the Minister submitted that:
(a)even if the Tribunal had erred in the way it treated the country information supplied by CQS18, this error was not material, for two reasons;
(i)first, that CQS18 was able to leave Sri Lanka without coming to the attention of the Sri Lankan authorities was an additional reason why the Tribunal concluded CQS18 did not have an adverse profile. So much is apparent from the language used in CB 563 at [73]. The primary reason was that CQS18 had been released from CID detention without charge and was not further arrested or mistreated: CB 563 at [72];
(ii)second, as explained above, even if the Tribunal had found, on the basis of the country information, that CQS18 could have left Sri Lanka without being stopped even if he were a person of interest, this conclusion was at best equivocal. It could not have disproved the Tribunal’s primary conclusion that CQS18 was not of interest to the Sri Lankan authorities because he had been released from CID detention in 2007, due to the fact that the Sri Lankan authorities were satisfied he had no links to the LTTE;
(b)therefore, CQS18 has not discharged the onus of showing that, had the Tribunal not made an error, there was a realistic possibility that the decision in fact made could have been different: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599 at [45]-[46] per Bell, Gageler and Keane JJ.
CONSIDERATION OF THE AMENDED JUDICIAL REVIEW APPLICATION
Some findings made by the Tribunal
In the Tribunal Decision the Tribunal:
(a)at CB 550 at [19] notes that in CQS18’s Tribunal Submissions the country information “contains information on passport and exit processes in Sri Lanka” but says nothing further there as to the “exit processes”;
(b)says it had regard to the 2017 DFAT Report and the UNHCR 2012 Guidelines to conclude that CQS18 did not have an anti-government or pro-LTTE profile that would bring him to the attention of the Sri Lankan authorities, or the EPDP: CB 557 at [43] and 558 at [47], 560 at [57] and 562 at [65] and [68]; and
(c)in considering CQS18’s profile had regard to the fact that he was released without charge, and not arrested or mistreated again, and that it was implausible that the CID would have released CQS18 had it had “ongoing suspicions” that CQS18 “had any connection to the LTTE or a pro-LTTE profile”, and found that CQS18 was released from CID detention “because the authorities were satisfied he had no links to the LTTE”: CB 563 at [72], and in this regard took into account:
(i)that CQS18 left Sri Lanka legally under a passport in his own name without difficulty: CB 563 at [73]; and
(ii)CQS18’s Tribunal Submissions “that exit processes were lax at that time”, but goes on to note the existence of the DIE Database and that it “contained specific information about individuals suspected of terrorist activity by the … [SIS] … as well as information from … the … [SIS]”: CB 563 at [74],
before concluding at CB 563-564 at [75] (emphasis added) that:
On the evidence before it, the Tribunal does not accept the applicant had an actual or imputed LTTE or anti-government profile. The Tribunal finds the applicant was of no interest to the Sri Lankan authorities for any reason.
In considering the issues the Court has found it convenient to deal with the issues of alleged failure to consider a claim or argument and illogicality or lack of intelligible justification before addressing the state of satisfaction issue.
Whether failure to consider claim or argument
The Amended Judicial Review Application asserts that the Tribunal failed to engage with a claim that a person suspected of terrorist activity might be flagged at the airport by the SIS on departure from Sri Lanka in “rare or specific” cases.
It is well established that failure to consider an integer of an applicant’s claim may constitute jurisdictional error where that claim relates to a mandatorily relevant criterion under the Migration Act: Dranichnikov at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [47]-[50] per Judge Lucev. In Htun at [42] per Allsop J, it was said that “[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”.
In EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304 at [36] per Perry, Derrington and Wheelahan JJ the Full Court of the Federal Court observed as follows:
Undoubtedly, a failure to consider a relevant component integer of a claim may, in appropriate circumstances, constitute a jurisdictional error: BZAFB v Minister for Immigration and Border Protection [2018] FCA 995 at [9] per Flick J. Necessarily the decision-maker is also required to consider the claims and the integers thereof which are not expressly articulated but which necessarily arise on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47] French, Sackville and Hely JJ held:
[46]It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]-[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47]The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The specific claim with respect to whether CQS18 might have been one of the “rare and specific” cases in which the SIS might have informed other authorities that CQS18 might be suspected of terrorist activities was not made by CQS18. Having regard, however, to the country information, and particularly that in CQS18’s Tribunal Submissions (quoted at [15(h)] above], which the Tribunal said a number of times in the Tribunal Decision that it had read, it was a claim which could be said to have arisen on the materials before the Tribunal: EVA17 at [36] per Perry, Derrington and Wheelahan JJ; NABE (No 2) at [61] per Black CJ, French and Selway JJ. Because the Tribunal has read the materials this is not a case which involves the Tribunal sifting through all of the material before it, in order to discover a claim made by CQS18.
The Tribunal specifically had regard to a number of matters relevant to the claim now said not to have been considered, namely:
(a)the exit processes at the airport when CQS18 departed Sri Lanka: at CB 563 at [73]-[74], and that the “exit processes were lax at that time”: CB 563 at [74];
(b)the existence of the DIE Database, and the fact that it contained specific information about individuals suspected of engagement in terrorist activity: CB 563 at [74]; and
(c)that passport checks that were conducted “required” checking against the DIE Database which also included “information from” the SIS computer system: CB 563 at [74].
The Tribunal had regard to the above matters in arriving at its conclusion that CQS18 did not have “an actual or imputed LTTE or anti-government profile” and “was of no interest to the Sri Lankan authorities for any reason”: CB 563-564 at [75] (emphasis added). In circumstances where the Tribunal has read the country information, and specifically referred to the SIS and the information it holds in the context of its consideration of the manner in which CQS18 exited Sri Lanka, it cannot be said that the Tribunal was unaware of the information in the country information about the possibility in “rare and specific” of a person being flagged by the SIS, or that it failed to consider the claim which arose on the materials before it. In any event, in those circumstances an inference that the Tribunal did not deal with the claim is not supported by clear evidence and ought not to be drawn: Carrascalao at [48] per Griffiths, White and Bromwich; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“Applicant WAEE”) at [47] per French, Sackville and Hely JJ.
When the Tribunal Decision is read as a whole (as it should be: Applicant WAEE at [47] per French, Sackville and Hely JJ; BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 (“BYX17”) at [49] per Rangiah, White and O’Callaghan JJ) and attention is paid to the principles set out in EVA17 and Applicant WAEE as quoted at [24] above, and the matters set out in the Tribunal Decision, and particularly at CB 563 at [73]-[75], it is evident that the Tribunal did not fail to consider the claim that a person suspected of terrorist activity might be flagged at the airport by the SIS on departure from Sri Lanka in “rare or specific” cases. No jurisdictional error in the Tribunal Decision is therefore established on this basis.
Illogicality or lack of intelligible justification
The Amended Judicial Review Application asserts that the Tribunal Decision was illogical or lacked an intelligible justification.
For the Tribunal Decision to be found to be affected by jurisdictional error on the ground of unreasonableness or illogicality, the Tribunal Decision must be one that no reasonable decision-maker could arrive at on the same evidence, or one without an evident and intelligible basis: 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], [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.
The evidence, and in particular the country information, in this case gave rise to various possibilities. Those possibilities included the possibility that CQS18 was not a person of interest to the Sri Lankan authorities because he did not have a profile which was adverse, or sufficiently adverse, to bring him to the attention of those authorities upon exiting Sri Lanka. They also included the possibility that CQS18 might be able to leave Sri Lanka without coming to the notice of those authorities because the exit procedures were lax. The Tribunal was plainly aware of the lax procedures possibility, referring to it at CB 550 at [19] and 563 at [74]. But the Tribunal, after particularly detailed consideration of all the other circumstances pertaining to CQS18, concluded that CQS18 did not have an anti-government or pro-LTTE profile that would have brought him to the attention of the Sri Lankan authorities upon exiting Sri Lanka: CB 557 at [43] and 558 at [47], 560 at [57], 562 at [65] and [68] and 563-564 at [75].
On this basis there are at least three difficulties with CQS18’s argument. The first is that neither of the two possibilities referred to above were determinative of whether CQS18 had a fear of persecution. The second is that the Tribunal’s considered finding that CQS18 did not have an anti-government or pro-LTTE profile that would have brought him to the attention of the Sri Lankan authorities upon exiting Sri Lanka is a finding that was plainly open on a consideration of all the materials before the Tribunal, and was not a finding that no other reasonable decision-maker could have made in the circumstances, and was therefore not illogical or lacking a rational justification, and was far from being extremely illogical: SZMDS at [131] per Crennan and Bell JJ; DAO16 at [4] and [30] per Kenny, Kerr and Perry JJ. Finally, and in any event, the finding CQS18 did not have an anti-government or pro-LTTE profile that would have brought him to the attention of the Sri Lankan authorities upon exiting Sri Lanka is a finding of greater generality which subsumes any issues with airport exit procedures or information on lists maintained by the Sri Lankan authorities and establishes a factual premise which must be taken as rejecting any basis for a fear of persecution based on those matters: Applicant WAEE at [47] per French, Sackville and Hely JJ.
For these reasons the Tribunal Decision was not affected by illogicality or a lack of reasonable justification as alleged by CQS18, and no jurisdictional error in the Tribunal Decision is therefore established on this basis.
State of satisfaction
The Amended Judicial Review Application asserts that the Tribunal did not properly form the state of satisfaction required by s 65 of the Migration Act.
The Full Court of the Federal Court in MZYTS [2013] FCAFC 114; (2013) 230 FCR 547; observed that descriptions such as "failure to consider evidence" may explain a path of legal analysis leading to jurisdictional error, and held that the Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion for a visa in issue before it: MZYTS at [32] per Kenny, Griffiths and Mortimer JJ. The formation of the state of satisfaction for the purposes of s 36(2)(a) and (aa) of the Migration Act involves two steps:
(a)a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality; and
(b)a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
The Tribunal was not, however, required to comment on every piece of country information provided by CQS18, or to explain why it rejected an item or attributed less weight to an item: NAHI at [14] per Gray, Tamberlin and Lander JJ. Whether a Tribunal fails to properly form the requisite state of satisfaction depends upon the circumstances of the case and the nature of the material, including the cogency of the material and its place in the assessment of an applicant's claims: MZYTS at [68]-[70] per Kenny, Griffiths and Mortimer JJ; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [52]-[56] per Katzmann, Griffiths and Wigney JJ.
As set out at [25]-[28] and [32]-[33] above:
(a)the Tribunal specifically had regard to a number of matters including the DIE Database and the information therein and the exit processes at the airport including the specific nature of the passport checks and information sources used in those processes for those exiting Sri Lanka;
(b)the Tribunal read the country information, and specifically referred to the SIS and the information it holds in the context of its consideration of the manner in which CQS18 exited Sri Lanka, and that consequently it cannot be said that the Tribunal was unaware of the information in the country information about the possibility in “rare and specific” of a person being flagged by the SIS, or that it failed to consider the claim which arose on the materials before it;
(c)the Tribunal, after a particularly detailed consideration of all the other circumstances pertaining to CQS18, found that CQS18 did not have an anti-government or pro-LTTE profile that would have brought him to the attention of the Sri Lankan authorities upon exiting Sri Lanka; and
(d)the finding that CQS18 did not have an anti-government or pro-LTTE profile that would have brought him to the attention of the Sri Lankan authorities upon exiting Sri Lanka is a finding of greater generality which subsumes any issues with airport exit procedures or lists maintained by the Sri Lankan authorities and establishes a factual premise which must be taken as rejecting any basis for a fear of persecution based on those matters,
and in those circumstances, it cannot be said that the Tribunal did not properly form the state of satisfaction required by s 65 of the Migration Act.
One matter particularly relied upon by CQS18 was an alleged failure by the Tribunal to have regard to the 2013 RRT Decision, and the country information set out therein, particularly that from the 2011 UK Home Office Report. The alleged failure is, however, belied by the fact that the Tribunal footnoted relevant paragraphs of the 2011 UK Home Office Report in relation to the very issues which are now brought into contention by CQS18: the laxity of exit procedures and the nature of the exit processes including the sources of information for the DIE Database, and the obtaining of information from the SIS: CB 563 at [74] at fn 12, suggesting that some of that information may have been taken from the 2013 RRT Decision, or at least the country information referred to therein. In any event, whilst uniformity and consistency in decision-making are desirable attributes in the course of administrative decision-making: Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 51 FLR 325; (1981) 34 ALR 639, ALR 647 per Deane J; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 at [54] per French CJ, Bell, Keane and Gordon JJ, the Tribunal was not bound by the 2013 RRT Decision: Nestivic, ALR 647 per Deane J; SZMIP v Minister for Immigration and Citizenship [2009] FCA 217 at [27] per Flick J (from which an application for special leave to appeal to the High Court was dismissed: SZIMP v Minister for Immigration and Citizenship [2009] HCASL 185 at [5] per Heydon and Bell JJ), and the only circumstances that the Tribunal needed to actually consider were those of CQS18: Syed v Minister for Immigration and Border Protection [2017] FCA 887 at [26] per Derrington J. Each case must be considered on its own circumstances: Ibrahim v Minister for Immigration and Ethnic Affairs [2000] FCA 1309; (2000) 63 ALD 37 at [15] per Burchett, Goldberg and Finkelstein JJ, and that is what the Tribunal did in this case.
It follows that there was no failure to consider evidence by the Tribunal leading to jurisdictional error, and the Tribunal’s task on review under s 414 of the Migration Act of forming, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion for a visa in issue before it did not miscarry, and did not give rise to jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that the ground of the Amended Judicial Review Application has not been made out and that Tribunal Decision is not affected by jurisdictional error. it follows that the Amended Judicial Review Application must be dismissed. There will be an order accordingly.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 16 January 2025
SCHEDULE OF PARTIES
MLG 1405 of 2018 Applicants
Fourth Applicant:
CQV18
0
54
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