CSX15 v Minister for Immigration

Case •

[2018] FCCA 2661

•

28 August 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSX15 & ANOR v MINISTER FOR IMMIGRATION  & ANOR [2018] FCCA 2661
Catchwords:
MIGRATION – Protection visa, allegation that tribunal failed to make an obvious enquiry about a critical fact – no error by tribunal – application for judicial review dismissed.

Legislation:

Migration Act 1958, s. 91R(1)(c)

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94

CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682

Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114

Minister for Immigration and Citizenship v Li and Anor (2013) 249 CLR 332

Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32.

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

NADH v Minister for Immigration and Multicultural Affairs [2004] FCAFC 328
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
SFGB v Minister for Immigration and Multicultural Affairs [2003] FCAFC 231
SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63

SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
First Applicant: CSX15
Second Applicant CSY15
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: MLG 2820 of 2015
Judgment of: His Honour Judge Wilson
Hearing date: 28 August 2018
Date of Last Submission: 28 August 2018
Delivered at: Melbourne
Delivered on: 28 August 2018

REPRESENTATION

Counsel for the First Applicant: No appearance
Solicitors for the First Applicant: Holding Redlich
Counsel for the Second Applicant: No appearance
Solicitors for the Second Applicant: Holding Redlich
Counsel for the First Respondent: Mr D Kellsey-Sugg
Solicitors for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: No appearance
Solicitors for the Second Respondent: Sparke Helmore

ORDERS

  1. The application filed on 18 December 2015 and amended on 23 April 2018 is dismissed.

  2. The applicants pay the first respondent’s costs fixed in the sum of $7 328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2820 of 2015

CSX15

First Applicant

And

CSY15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

  1. The issue in this case was the adequacy of the tribunal’s treatment of advice from the Office of the Colombian Attorney General (“OCAG”).  The applicants contended that the tribunal’s treatment of that advice was inadequate, for a variety of reasons, amounting to jurisdictional error.  Conversely, the minister submitted that the tribunal made no jurisdictional error.  The question for me was whether any of the five grounds of review were made out.

Synopsis

  1. For the reasons that follow in my judgment this application for judicial review failed.  I dismiss this application and order the applicants to pay the minister’s costs fixed at $7 328.

Short factual recital

  1. The applicants applied for protection visas on 11 September 2013.  The first applicant was born in 1999.  The second applicant, who was born in 1974, applied as a family member of the first applicant.  By letter dated 24 July 2013 the applicants’ solicitors and migration agent wrote to the minister seeking intervention.  On 8 July 2014 the minister’s delegate refused to grant the applicants the protection visa they sought. 

  2. On 21 July 2014 the Refugee Review Tribunal, now the Administrative Appeals Tribunal, received the applicants’ application for merits review.  On 23 July 2014 the tribunal sent the first applicant an email stating that the application for review was on the wrong form.  The correct form was lodged on 4 August 2014 making 4 August 2014 the date of application to the tribunal.

  3. On 4 September 2015 the tribunal invited the applicants to appear before it on 12 November 2015.  Both applicants indicated they would appear.  They requested help from a Spanish interpreter.  The hearing was duly convened on 12 November 2015. According to tribunal records the hearing commenced at 9:38am yet the completion time was not given. 

  4. It was common ground that before the tribunal was a certificate, dated 23 October 2015 signed by the Specialised Attorney General appointed before the GAULA team in the Colombian Regional Department of Santander (“SAGC”).  The details of the SAGC are set out below. But before addressing the contents of the certificate it is necessary to set out the way the tribunal approached the protection visa claims made by the applicants. 

  5. The applicants did not assert that the tribunal failed to consider a claim validly made.  Instead, the applicants advance a variety of reasons why they said the tribunal’s consideration of the 23 October 2015 SAGC from OCAG was defective, thereby causing the tribunal to fall into jurisdictional error.  It is utile at this point to set out the terms of the OCAG. When translated by an official translator, it read as follows –

    [THE OFFICE OF THE COLUMBIAN ATTORNEY GENERAL]

    THE SPECIALIZED OFFICE OF THE ATTORNEY GENERAL APPOINTED BEFORE THE ANTI-KIDNAPPING AND EXTORTION TEAM (GAULA) IN THE COLOMBIAN REGIONAL DEPARTMENT OF SANTANDER

    CERTIFIES THAT:

    This Office conducted the criminal investigation filed under the number 6800161090611200880036, corresponding to the felony of Kidnapping for Extortion, being the victim of this crime Mr. AURELIO VALDIVIESO DIAZ. The events of this crime occurred in the municipality of Curiti, Colombian Regional Department of Santander, on the 06th day of October of 2008. The investigation conducted by this office led to the arrest and imprisonment of three people; however, other participants in this crime, at least three of them, are being currently under criminal prosecution but have not been arrested; these three people have been sentenced to imprisonment in their absence. This means that some of the individuals responsible for this crime and currently free and this represents a risk for the relatives of the victim.

    Furthermore, it is hereby clarified a mistake in the case number was made by this office in certification issued on the 10th day of July of 2013 related to this investigation of this case.

    This certification is issued in Bucaramanga at the request of the interested persons on the twenty-third (23rd) day of the month of October of the year of 2015. It is addressed to the AUSTRALIAN IMMIGRATION OFFICE.

    [SIGNED]

    WILSON RANGEL GONZALEZ

    Specialized Attorney General appointed before the GAULA Team in the Columbian Regional Department of Santander.

    -------------------------------------------------------------------------------

    Specialized Office of the Attorney General appointed before the GAULA Team in Santander Intersection of CARRERA 33 and CALLE 18. 5TH Army Brigade.

    BUCARAMANGA, Colombia

    Telepohone: +57 7 – 6347062

The tribunals reasoning

  1. Let me now turn to the tribunal’s reasons.  Between paragraphs 1 and 3 of its reasons the tribunal correctly recorded the nature of the review, the date of the applicants’ protection visa application, the delegate’s decision, the application for merits review and the applicants’ evidence at the hearing on 12 November 2015 through an interpreter. 

  2. Between paragraphs 4 and 19 of its reasons the tribunal correctly paraphrased the operation of the provisions of the Migration Act (“Act”) that addressed convention-based protection as well as complementary protection. 

  3. In paragraph 20 of its reasons the tribunal identified the material that the tribunal had before it. In the fifth dot point the tribunal referred to a report from OCAG dated 23 October 2013 rather than 2015 but neither party took issue with that obvious typographical error.  That was an entirely proper approach having regard to the observations of the court in Foroghi v Minister for Immigration and Multicultural Affairs[1] and in CCC v Minister for Immigration and Multicultural Affairs,[2] quite different and distinguishable on the facts from SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs.[3]

    [1] [2001] FCA 1875

    [2] [2001] FCA 682

    [3] [2007] FCA 63

  4. In paragraphs 21 and 22 of the tribunal’s reasons, the tribunal summarised the applicants’ claims. The paragraphs were short.  It is useful to reproduce them below –

    The applicant’s claims can be summarised as follows. The applicant was born in Bucaramanga, Santander, Colombia, in 1999.  He first arrived in Australia as the secondary holder of a student visa granted to the applicant’s father’s partner.  His parents were no longer together and his mother lives in Colombia.  The applicant father was born in 1974 in Colombia and had first arrived in Australia in October 2007 on student visa.

    In October 2008, the applicant’s maternal grandfather (a wealthy merchant) was kidnapped and held for ransom.  Although the army managed to rescue him, the Office of the Attorney General advised that the victim’s family still faced risks as not all of the kidnappers had been apprehended.  The applicant’s family sent the applicant to live with his applicant father in Australia.

  5. From paragraph 24 onwards, the tribunal addressed the applicants’ claims.  Relevantly paraphrased, the tribunal accepted that –

    a)in October 2008 the first applicant’s grandfather, a wealthy merchant, horse breeder and landowner, was kidnapped and held to ransom by persons who threatened to kill the grandfather;

    b)the grandfather was rescued by authorities after 28 days in captivity;

    c)three of the grandfather’s kidnappers were arrested and were in prison but three others had not been arrested and had been sentenced to imprisonment in their absence;

    d)the first applicant was close to his grandfather and would stay in the grandfather’s hometown of San Gil;

    e)one or two years after the grandfather’s kidnapping the grandfather received condolence cards in respect of his own death;

    f)the grandfather employed a bodyguard following his kidnapping; and

    g)following the kidnapping of the grandfather the first applicant’s movements were restricted, he was moved around houses and then he was sent to live with the second applicant in Australia.

  6. Of particular relevance to this case was the tribunal’s statement in the last sentence of paragraph 25 of its reasons.  There the tribunal wrote as follows –

    I accept and have taken into account that the Office of the Colombian Attorney General have recently advised that some of the individuals responsible for the kidnapping are currently free and represent a risk for the relatives of the grandfather.

  7. The tribunal concluded that the first applicant faced a remote chance or risk that in the foreseeable future he would be targeted or seriously or significantly harmed by the kidnappers or any associated group, including the National Liberation Army, the Revolutionary Armed Forces of Colombia, BACRIM or anyone else.

  8. The tribunal found the first applicant did not face a real chance of persecution on account of his membership of particular social groups, consisting of Children of Colombia and his family, or by reason of a convention or non-convention reason, nor in the reasonable foreseeable future from the kidnappers from FARC, from ELN, from BACRIM or anyone else. 

  9. The tribunal concluded that the chance or risk was remote that the applicants would be seriously or significantly harmed by a criminal act.

  10. The tribunal stated that s 91R(1)(c) of the Act was not engaged because if the applicant were targeted for any crime, that would be for financial gain, rather than on account of their race, religion, nationality, political opinion or membership of a political social group, and it would not involve systematic and discriminatory conduct, and so any such act would not constitute persecution.

  11. The tribunal held that there was no real risk of significant harm because the real risk was faced by the population of the country generally rather than by the applicants personally.  The tribunal found at paragraph 36 of its reasons that the applicants did not face a real chance of persecution in the reasonably foreseeable future for a convention or non-convention reason and their fear of persecution was not well-founded. 

  12. As mentioned earlier the tribunal affirmed the delegate’s decision not to grant the applicants the protection visa they sought.

In this court

  1. Being dissatisfied with the decision of the tribunal, the applicants filed this application for judicial review on 18 December 2015.  In it they raised three grounds, none having particulars and none setting out propositions of fact or law by which it was possible to discern on what basis they contended that the tribunal fell into jurisdictional error. 

  2. On 23 April 2018 the applicants filed an amended application.  In it they relied on five grounds each of which had particulars.  Each party provided detailed written submissions and even provided a joint list of authorities with two lever-arch folders of cases copied for my use.  May I at once record my gratitude to the legal representatives in this case for their highly cooperative approach.

  3. It will be more useful to set out each ground in terms, while separately considering them. 

Ground one

  1. Under this ground the applicants alleged that the tribunal fell into jurisdictional error by failing to perform the statutory task that was imposed upon it.  At such a high level of generality, that contention was unhelpful at best, and useless at worst. Yet the particulars gave some insight into the applicants’ real grievance.  It related to the tribunal’s consideration of the 23 October 2015 advice that was contained in the OCAG document.  Specifically, the applicant said in ground 1(b) that the tribunal’s reasons did not disclose that the tribunal assessed “in any real or active way” the OCAG advice, including advice that the applicants were at risk.

  2. At paragraph 1(c) the applicants stated that the absence from the tribunal’s reasons of any process of weighing the evidence before it indicated that the tribunal impermissibly omitted or ignored the OCAG advice.  That was the gravamen of ground one.

  3. Both parties relied on the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Border v MZYTS[4] as grounding the state of satisfaction a tribunal must reach in respect of the criterion or criteria for a visa in issue before it.

    [4] [2013] FCAFC 114

  4. On behalf of the applicants, it was contended that the tribunal did not express doubt about the authenticity of, relevantly, the 2015 certificate. Then the applicants focused on one sentence of one paragraph of the tribunal’s reasons, namely paragraph 26. There the tribunal stated as follows –

    The lack of threats or attempts to harm the applicant and other family members indicates that the kidnappers and their associated groups are not interested in targeting or harming the applicant for any reason including extortion or revenge.

  5. The applicants said that such a finding was critical and the tribunal did not indicate why the matters in paragraph 26 of its reasons were preferred over the matters in paragraph 25. The applicants asserted that the tribunal stated it had taken the 23 October 2015 certificate into account yet at no stage did the tribunal engage in a consideration of the substance of it.  Calling in aid the court’s observations in Minister for Immigration and Border v MZYTS[5] (at paragraph 50), where the court held that some indication should be given why one piece of information is preferred over another, in this case the applicant said that was not done.  The applicants said the tribunal barely mentioned the 23 October 2015 certificate at all. 

    [5] [2013] FCAFC 114

  6. In broad terms, the minister urged three contentions in response those being –

    a)the tribunal specifically directed the applicants during its questioning of them to the subject matter of the 2015 SAGC and, based on the answers given it could not be said that the tribunal’s reasons revealed anything less than a real and active assessment of the advice from OCAG;

    b)that when the tribunal’s reasons were read as a whole, without an eye keenly attuned to the perception of error, the tribunal did in fact have proper regard to the OCAG advice; and

    c)under the cloak of this ground the applicants were in reality complaining about the result that it was not in their favour, a factor militating against there being any valid basis for identifying the existence of jurisdictional error.

  7. Let me take each in turn.  

  8. First, it is helpful to go to the conduct of the hearing on 12 November 2015.  The minister’s solicitor exhibited the transcript of that hearing to her affidavit, sworn 11 May 2018. The tribunal member identified the document from OCAG, as recorded at page 10 of the transcript of the hearing before the tribunal.  The exchange between the second applicant, the first applicant’s father, and the tribunal was in the following terms –

    MEMBER:  I mean I’ve seen the document that you’ve got here from the Colombian Attorney General talking about there, being, you know, still three people who were at large or three people who had escaped being sentenced but do you know anything about the three men – how long – who had been imprisoned and for how long?

    APPLICANT:   No, honest, I don’t know about that, yes.  I’m not sure.  I don’t have document because the person who handled our case before, he write in the last letter he sent to us when he refused the application he say something about (indistinct) misunderstand in his letter we passed to him about information how many people was (indistinct).  

    INTERPRETER:   Court.

    APPLICANT:   In court in that situation and if for that my family, as in Colombia again to get that letter with the clear information what happened, yes, because if you can check in your files you see the (indistinct) he explain about the process but he say he found some information in the news (indistinct) about the same case and the case had (indistinct) about how many people escaped, yes, for that would (indistinct) with the clear information about this case.

    MEMBER:   I’m putting this to both of you, you know, this event happened over seven years ago and nothing seems to have happened to the grandfather or any other – apart from some cards being sent to him – in quite a long period of time ago now and also I mean, you were in the country for another two and a half years or so – or a substantial period of time and nothing seems to have happened, so I may think, you know, I may seem to accept what has happened, so I may think, you know, I may seem to accept what has happened in relation to the grandfather but I may think that,, you know, the chance of you now being – or your son – being targeted is remote, given the passage of time and even, you know, nothing seems to have happened in the seven years.

    APPLICANT:   Yes, if you see the files I have (indistinct) to you, you can see in Colombia is normal for example when someone is – was kidnapping, people do the thing again, kidnapping him with family, sometimes the second or third time (indistinct) to people, yes? But this didn’t happen in the country, about the time passed now I just try and explain you what happened, this did happen in Colombia. I do the best for my son because he was young and I (indistinct) with his mum, all right, we just I move him from house to another house because of the thing the police advisor to us says is better move home to another home, to another place, yes. 

  1. The second applicant’s evidence on point went on at page 13 of the hearing before the tribunal. It was as follows –

    MEMBER:   And is your fear for your son just that he will be a victim of, you know, of kidnapping or extortion or do you have any other fears?

    APPLICANT:   Yes. Is – it’s more about my son (indistinct) like I was saying before in the last hearing is not a (indistinct) the normal person, my family is the middle class, people can’t get money from me (indistinct) in my country, that is not much yes, but this (indistinct) is about he – is not of me – yeah, it’s about my son because you would understand – like (indistinct) a father yes?  It is very difficult if, for example we go back to Colombia and something happen with my son, I can’t get the money to pay this one for my son and sometimes is not just for the people kidnapping the son is what happen if you do not pay – sometimes these people disappear the person, you know, cut the body and left the body in the river, it’s like this (indistinct) I don’t want because if – if I know my son pass away I know about this, yes, but if you read in all the reports (indistinct) or you pay (indistinct) these people if you don’t pay these people just kill the person and never give the body back to the family, yes, is the thing   – this is the thing is this more about this one, this – you know, is really (indistinct) yes. I can’t say no it’s about my safe.

  2. Counsel for the minister argued that the tribunal had the OCAG in mind when questioning the second applicant.  In addition, the tribunal put to the second applicant questions directed to establishing whether the applicants held a well-founded fear of persecution, by reason of race, religion, nationality, membership of a particular social group, or political opinion, and whether there was a real chance that if the first and second applicants were returned to Colombia, they would be persecuted for any one or more of those reasons. The minister said the tribunal considered and weighed country information.

  3. It seemed to me that there was merit in the minister’s contention that the tribunal at paragraph 26 of its reasons addressed the passage of time since the grandfather’s kidnapping and the absence of targeting of the grandfather or family members since the condolence cards were sent.

  4. It seemed to me that the tribunal did in fact do as it was required, according to Tran v Minister for Immigration and Multicultural and Indigenous Affairs.[6]  It did –

    a)pay specific regard to the existence and content of the 2015 OCAG advice;

    b)give a real and active assessment of the 2015 OCAG advice;

    c)address country information relevant to the matters raised in the 2015 OCAG, especially risks of kidnapping; and

    d)address in the hearing the applicant’s concerns about the matters which the 2015 OCAG raised. 

    [6] [2004] FCAFC 297

  5. In my view, it was plain that the applicants were not satisfied with the outcome before the tribunal in this case.  Under the guise of a complaint about the 2015 OCAG advice, they were in reality asserting that the tribunal should have come to a result in their favour.  That was not jurisdictional error.  I do not accept the bases asserted under ground one were made out.

Ground two

  1. Under this ground, the applicants asserted that the tribunal failed to make obvious enquiries about critical facts, including the risks identified in the 2015 OCAG advice.  In support, the applicants called in aid the decision of the High Court in Minister for Immigration and Citizenship v SZIAI,[7] contending that a failure by the tribunal to make an obvious enquiry about a critical fact, the existence of which was easily ascertained, may constitute jurisdictional error. 

    [7] (2009) 83 ALJR 1123

  2. In written submissions on the applicants’ behalf, counsel for the applicants submitted that the tribunal ought to have enquired into –

    a)the reasons for the OCAG’s risks assessment;

    b)the nature of the risk;

    c)whether the risk identified was general or specific; and

    d)when the apprehended kidnappers were due for release from prison.

  3. The minister said the enquiries identified by the applicants –

    a)were not obvious enquiries;

    b)they were not about critical facts; and

    c)the answers to them would not have supplied a sufficient link to the outcome to constitute a failure to review.

  4. In respect of the enquiries identified by the applicants, I agree that they were not obvious enquiries and I agree that the answers to them were not easily ascertained.  So far as the risk was general or specific, that scarcely concerned a critical fact.  The applicants did not suggest how those enquiries were to be pursued nor even if the questions were asked of OCAG now the OCAG would have responded let alone with answers that were satisfactory to the applicants.

  5. In my view, the minister’s position on this ground was correct.  Ground two failed.

Ground three

  1. Under this ground, the applicants asserted that the tribunal fell into jurisdictional error by making critical findings of fact for which there was no evidence.  Relying on the Full Court decisions in SZMWQ v Minister of Immigration and Citizenship[8] and SFGB v Minister for Immigration and Multicultural Affairs,[9] the applicants argued that in this case the jurisdictional error was recorded at paragraph 26 of the tribunal’s reasons where the tribunal said –

    a)seven years had passed since the kidnapping incident and the kidnappers and groups had not since attempted to harm the grandfather or any other family member; and

    b)it accepted that condolence cards of the grandfather’s own death were sent to the grandfather and were a threat, they were sent about five years prior to the tribunal hearing since which the grandfather and other family members had not been targeted or harmed.

    [8] [2010] FCAFC 97

    [9] [2003] FCAFC 231

  2. The applicants argued that those findings were critical to the tribunal’s overall conclusions and that if an evidentiary basis existed for the making of those findings none was revealed by the tribunal’s reasons. 

  3. The transcript of the tribunal hearing revealed the facts that underpinned those findings.  They were as follows –

    a)the first applicant’s evidence at page 7 lines 32 to 36 of the transcript of the tribunal’s transcript where in answer to the question whether anything of note happened in the period up to August 2011, he said he was not fully aware of what was happening from his point;

    b)the first applicant’s evidence at page 7 lines 38 to 44 of the tribunal transcript where in answer to the question whether anything happened to the grandfather who was captured, the first applicant said his family did not tell him really what was happening;

    c)the first applicant’s evidence at page 7 lines 46 to page 8 line 1 of the tribunal transcript where in answer to the question whether the first applicant knew there was any sort of contact from guerrillas and his family, the first respondent said he did not know and his family did not tell him;

    d)the first applicant’s evidence at page 8 lines 3 to 18 of the tribunal transcript where in answer to a question whether anything else happened since he arrived in Australia, the first applicant said he had not been told anything; and

    e)the first applicant’s evidence at page 9 lines 45 to 47 of the tribunal transcript in answer to a question whether any other family members had been targeted, the first applicant answered in the negative, twice.

  4. It seemed to me that the tribunal had an abundance of evidence on which to ground its findings and conclusions expressed in paragraph 26 of its reasons.  It seemed to me that there was no foundation for the applicants’ contentions under ground 3.  

  5. The minister alternatively contended that the findings in paragraph 26 on which the tribunal relied were –

    a)findings as to a matter which was required to be established before a decision in issue could be reached, citing Minister for Immigration and Multicultural Affairsv Rajamanikkam;[10] and

    b)findings of fact without which the decision in question either could or would not have been reached, again citing Rajamanikkam.

    [10] (2002) 210 CLR 222

  6. The minister pointed out the applicants did not run a “no evidence” argument, as was considered in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB.[11]  It should also be observed that the tribunal was not required to give reasons on each and every argument advanced by the applicant. To my mind, the ground was determined by the application of the following propositions –

    a)the tribunal was not required to give reasons on each and every argument that the applicant raised;

    b)the questions and answers given during the tribunal’s questioning of the first applicant as recorded on pages 7, 8 and 9 of the transcript; and

    c)the proposition on which the applicants relied was not a matter that had to be established before the relevant decision could be reached.

    [11] [2004] HCA 32

  7. In my view ground three failed.

Ground four

  1. Under this ground, the applicants pointed to the tribunal’s reasons that referred to a report from OCAG dated 23 October 2013 rather than 23 October 2015.

  2. For reasons already canvassed, the reference to 2013 was an obvious typographical error and it was not an error constituting jurisdictional error. 

  3. Ground four failed.

Ground five

  1. Under this ground, the applicants asserted that the tribunal made a decision that was legally unreasonable or it was illogical and it was not based on findings or inferences of facts supported by logical grounds.  The applicants again attacked paragraph 26 of the tribunal’s reasons especially the finding that there had been a lack of threats or attempts to harm the applicants or other family members.

  2. In the particulars to ground five the applicants put the argument in three different ways. They said –

    a)in paragraph 5(b) that it was illogical or irrational to find or infer that the risk of harm was diminished by a lack of threats or attempts to harm the applicants when he had left Colombia by August 2012 and having left Colombia there was no practical way he could have been harmed by the same perpetrators who kidnapped his grandfather;

    b)in particular 5(c) that it was illogical and irrational to find or infer that the risk of harm to the applicant (meaning the first applicant), was diminished by a lack of threats or attempts to harm other people as the applicant claimed to fear peculiar harm on the basis that he was his grandfather’s only grandson and so whether other people had been threatened or harmed was irrelevant; and

    c)in particular 5(d) that it was illogical or irrational to find or to infer that the risk of harm was diminished by a lack of threats or attempts to harm the applicant or other family members when they had modified their conduct to avoid persecutory harm, for example by leaving Colombia, employing a bodyguard and by restricting the applicant’s movements.

  3. In written submissions to support ground five, the applicants relied on a collection of High Court and Federal Court decisions, including

    [12] [2003] HCA 30

    [13] [2004] HCA 32

    [14] (2010) 240 CLR 611

    [15] [2004] FCAFC 328

    [16] (2003) 216 CLR 473

    Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002,[12] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB,[13] Minister for Immigration and Citizenship v SZMDS,[14] NADH v Minister for Immigration and Multicultural Affairs,[15] as well as Appellant S395/2002 v Minister for Immigration and Multicultural Affairs.[16]

  4. A significant number of other authorities call for inclusion in any consideration of legal unreasonableness or illogicality.  They include Minister for Immigration and Citizenship v SZRKT,[17] Minister for Immigration and Citizenship v Li and Anor,[18]  Minister for Immigration and Border Protection v Singh,[19] Minister for Immigration and Border Protection v Stretton[20] and most recently Minister for Immigration and Border Protection v SZVFW,[21] together with BZD17 v Minister for Immigration and Border Protection.[22]  Contemporary legal analysis on point proceeds on the basis that extreme illogicality or irrationality  must be demonstrated, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds might come to a different conclusion.

    [17] (2013) 212 FCR 99

    [18] (2013) 249 CLR 332

    [19] (2014) 231 FCR 437

    [20] (2016) 237 FCR 1

    [21] [2018] HCA 30

    [22] [2018] FCAFC 94

  5. In my view, it could not be said that the tribunal’s conclusions in paragraph 26 of its reasons were in that category.  To the contrary. In my view it was perfectly logical for the tribunal to reason that having regard to there being no apparent interest in the applicants in the manner set out in paragraph 26 that the risk identified in the first sentence of paragraph 26 was in fact remote, as the tribunal duly held.

  6. Ground five failed.

Conclusion

  1. All grounds fail. I dismiss this proceeding and order the applicant’s to pay the minister’s costs in the fixed sum of $7 328. 

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:         19 September 2018


Key Legal Topics

Areas of Law

  • Administrative Law

  • Immigration

Legal Concepts

  • Judicial Review

  • Natural Justice

  • Procedural Fairness

  • Standing

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