CTM16 v Minister for Immigration
[2018] FCCA 2865
•17 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CTM16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2865 |
| Catchwords: MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AA(1), 5H, 5J, 36, 36(2)(aa), 57(2), 473CB, 473DB, 473DC, 473DD, 473DE, 476 |
| Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Immigration [2003] FCAFC |
| Applicant: | CTM16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2080 of 2016 |
| Judgment of: | Judge Kendall |
| Hearing date: | 18 June 2018 |
| Date of Last Submission: | 18 June 2018 |
| Delivered at: | Perth |
| Delivered on: | 17 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Hartley |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the First Respondent: | Mr B Petrie |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The applicant’s originating application filed 26 September 2016, amended on 18 May 2018, is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
MLG 2080 of 2016
| CTM16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By originating application filed 26 September 2016, amended on 18 May 2018, the applicant seeks review of a decision of the Immigration Assessment Authority (the “IAA”) pursuant to s.476 of the Migration Act 1958 (Cth) (the “Migration Act”). The IAA’s decision affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (“SHEV”).
The applicant seeks an order that the decision of the IAA be quashed and that a writ of mandamus be directed to the IAA. To succeed in this Court, the applicant must show that the IAA fell into jurisdictional error.
The Court had before it a Court Book (“CB”) numbering 392 pages and the following affidavits:
a)the affidavit of the applicant sworn 23 September 2016;
b)the affidavit of Nimali Ambikaiplan affirmed 14 May 2018; and
c)a second affidavit of Nimali Ambikaiplan affirmed 15 June 2018.
The Court also had written submissions from the parties as follows:
a)the applicant’s outline of submissions dated 18 May 2018; and
b)the Minister’s outline of submissions dated 4 June 2018.
The applicant was represented by Mr Hartley of Counsel under instruction from Ambi Associates. The Minister was represented by Mr Petrie of Counsel under instruction from DLA Piper Australia.
The Court thanks both Mr Hartley and Mr Petrie for their considerable assistance with what proved to be a factually and jurisprudentially complex matter.
Background
The Court has reviewed the factual material provided by the parties, including the overview outlined at [4] through [7] of the applicant’s outline of submissions and [3] through [8] of the Minister’s outline of submissions. The Court adopts the following facts as the procedural and factual background to these proceedings:
a)the applicant is a Sri Lankan citizen of Tamil ethnicity (CB 9-14);
b)on or around August 2012, the applicant arrived in Australia at Cocos Island by boat and without a valid visa (CB 24). As a result of this entry the applicant was deemed an unauthorised maritime arrival within the meaning of s.5AA(1) of the Migration Act;
c)on 23 January 2013, the applicant attended an entry interview (CB 9-25);
d)on 18 December 2015, the applicant submitted a statutory declaration setting out his protection claims (CB 83-89);
e)on 12 February 2016, the applicant applied for a SHEV;
f)on 26 April 2016, the applicant attended an interview with a Ministerial delegate. At that interview the applicant added to his written claims saying that in February 2016 his wife’s cousin was fishing in the applicant’s boat when he was approached by the Sri Lankan Navy (the “SLN”), questioned about the applicant and then stabbed (CB 142 at [7]);
g)on 13 July 2016, the applicant was advised of the delegate’s decision to refuse him a SHEV (CB 302-329). The applicant’s matter was then referred to the IAA for a “fast track” review (CB 164 and 334-335);
h)on 15 August 2016, the applicant’s agent provided the IAA with submissions, together with a statement from the applicant, in support of the applicant’s application for a SHEV (CB 355-360); and
i)on 31 August 2016, the IAA affirmed the delegates decision to refuse the applicant a SHEV (CB 371-391).
The IAA’s decision
The IAA considered and referred to the information provided by the Minister’s delegate under s.473CB of the Migration Act and did not obtain any further information.
The IAA summarised the applicant’s protection claims as follows (CB 373-374 at [8]):
a)He is a Tamil and a Roman Catholic. He started his own business in Mannar in 2002, buying, transporting and selling fish throughout Sri Lanka. Before leaving Sri Lanka his business employed about forty people. Due to the success of his business he was wealthy, well known in the area and had a lot of influence.
b)Around 2008 the SLN started to harass him and interfere with his business. They prevented boats going to sea and would forcibly take large quantities of fish. They did this because he is a Tamil and a successful business person.
c)The SLN regulates the fishing industry and requires fisherman to have Navy passes. From 2009 to 2012 the applicant actively protested against the pass system. He did so by writing letters and lodging complaints with the Navy and the Fishermen’s union. He also lodged complaints with the Mannar Christian Bishop and the Human Rights Commission.
d)In January 2010, the applicant actively campaigned for the United National Party (the “UNP”) candidate in the Presidential election. He helped organise public meetings for the UNP campaign.
e)During the period of the parliamentary election in April 2010, he assisted the Tamil National Alliance (the “TNA”) by promoting the party to other business people.
f)Around January 2011 the navy shot many supporters of the TNA in Mullaitivu, Vavuniya, Pesalai and Talaimannar, which are forty kilometres from the applicant’s town. The applicant was afraid that the SLN would come to his village and kill him as well.
g)Around February 2011, the applicant complained to the police about the SLN’s ongoing interference with his business. He indicated that the harassment arose from his support of the TNA. The police said they would warn the SLN but nothing changed. The SLN was furious that he had complained.
h)Around February 2011, the navy took five or six TNA supporters from the applicant’s village and tortured them. Amongst this group were some of the applicant’s friends and relatives. Around the same time, the SLN took four or five people who were never heard from again.
i)Around March 2011, there was a municipal election for the Vanni district in Mannar. The applicant’s wife’s uncle “K” and her cousin “MA” were TNA candidates. The applicant supported them by campaigning for the TNA in the area and conducting public meetings.
j)After the March 2011 election, the SLN regularly harassed the applicant. They would come to his work and confiscate his national identity card (“NID”) and demand that he come to their base to retrieve it. When he went to the SLN base he would be regularly beaten. On one occasion he was suspended upside down from the ceiling and beaten. The SLN falsely accused him of being involved with the Liberation Tigers of Tamil Eelam (the “LTTE”) and threatened to shoot him because of his involvement with the TNA and because he filed a complaint with the police about the navy’s interference with his business. This type of harassment continued until he departed Sri Lanka. Before he went into hiding in 2011, this would happen as often as three times per month.
k)Around August 2011, after the TNA had won the election, SLN officers came to the applicant’s work and put a gun in his mouth. They threatened to kill him because he made complaints to the police and supported the TNA.
l)Following this, the applicant hid in surrounding villages and with friends. He only went back to the village at night to see his family and do things for his business.
m)Between August 2011 and August 2012, when he was in hiding, the SLN visited his wife and parents-in-law on several occasions and threatened to kill the applicant if they found him.
n)Around May 2012, a Tamil police officer warned the applicant that the SLN was planning to shoot him. He assumes the officer knew this because they shared the same camp. After this he made plans to leave the country.
o)Since he departed Sri Lanka, his wife and parents-in-law have told him that the SLN and the SLA have come looking for him on numerous occasions. He knows the authorities are still looking for him. On 21 March 2014, his wife received a summons issued by the sub-inspector of police directing him to attend Mannar police station. The summons alleges the applicant assisted an unlawful prohibited organisation. In January 2015, unidentified government agents questioned the applicant’s older brother at his business regarding the applicant’s whereabouts.
In its reasons for decision the IAA:
a)found that the applicant was engaged in the business of buying, transporting and selling fish in Mannar from 2002 until the time he left Sri Lanka in 2012 (CB 374 at [10]) and that from between 2009 and 2012 the applicant was involved in protesting about the fishing pass system and had complained about the actions of the SLN in harassing Tamil fishermen (CB 375 at [11]);
b)noted that the applicant claims that:
i)in February 2011 he complained to the police about the navy’s ongoing interference with his business because of his support for the TNA;
ii)after the March 2011 municipal elections the SLN began to harass him regularly, including by confiscating his NID card and demanding that he attend the navy camp to retrieve it;
iii)when he got to the camp, he would be regularly beaten by Navy officers, who also made a false allegation that he had helped the LTTE and made him sign a document in Sinhala which he didn’t understand (CB 376 at [18]); and
iv)in August 2011 members of the SLN came to his fisherman’s hut, put a gun in his mouth and pretended they would shoot him. There were about 4 or 5 people. Because they were speaking in Sinhala, he didn’t know what they said. In his application he stated that they threatened to kill him because he had made complaints against them to the police and because he continued to support the TNA (CB 376 at [19]);
c)had concerns in relation to the applicant’s credibility in relation to his claims of harassment by the SLN because of his political involvement (CB 376 at [18]);
d)stated at paragraphs ([20]–[24]) (CB 376-377):
20.I do not accept that the applicant was threatened with a gun in August 2011 or that he was beaten in September 2011 because of his political involvement or support for the TNA. I note that in his entry interview, the applicant did not make any claim of being physically harmed or threatened by the SLN. He made no claim regarding political harassment by the SLN but referred only to a Sinhalese party which came and told him not to work for the TNA. His only claim in regard to the SLN was about the confiscation of his catch and his complaints about that. The delegate put to the applicant that the fact he was raising new claims now may raise issues of his credibility. The applicant stated, among other things, that at that time he was new and had some memory issues and also had mental health treatment, that his wife said they’d come so he started to worry and couldn’t give a proper report. He also worried about the interview information being passed to the Sri Lankan authorities. He stated that it was only later he was told that no information was passed to his country and that now he has the courage.
21.There is no other information before me regarding the applicant’s claim that he had some mental health treatment. While it is plausible that he was skeptical about information not being provided to his country, I do not accept as credible the applicant’s claim that he could not remember something as serious as, for example, being threatened with a gun or hung upside and beaten.
22.I also note that after claiming in his application that the confiscation of his NID card happened regularly and that he was regularly beaten by the SLN because of his involvement with the election in March 2011, the applicant stated that it happened only once and that it was in September 2011, some six months after the March 2011 election. The applicant did not provide an explanation for why, after such a delay, the SLN would allegedly beat him because of that support.
23.The applicant claimed that after these incidents he was afraid and went into hiding between August 2011 and August 2012 and during this time SLN officers visited his wife and parents-in-law on several occasions and threatened to kill him if they found him. In his SHEV interview, the applicant described being away from home during that period for varying lengths of time but said he was mainly at home during that year. I note from his SHEV application that the navy camp is located very close to where the applicant’s family lives. Country information also confirms the existence of a SLN camp in the applicant’s village. Given the proximity of the navy base to his home and the fact that the applicant spent most of the year he claims he was in hiding at home, I consider that if the navy had wanted to find the applicant and kill him, they would have been able to do so. His claim to have been in hiding between August 2011 to August 2012 is also at odds with the evidence in his SHEV interview that he was summoned to the navy base to retrieve his NID card and beaten in September 2011.
24.I find that the applicant has exaggerated the nature of his interactions with the SLN in order to enhance his claims. I do not accept that in August 2011 the applicant was threatened with a gun or that in September 2011 he was beaten by members of the SLN because of his support for the TNA. It follows that I do not accept that the applicant was in hiding as he claims from August 2011 to August 2012 or that during that time navy officers visited his home and threatened to kill him if they found him.
e)taking into account the circumstances in which the remarks were made (during a party) and in the absence of any evidence that any action was taken against any of the fishermen as a result of those remarks, did not accept that the threat was real. Nor did it accept that navy officers threatened to shoot the applicant in May 2012 (CB 378 at [26]);
f)did not accept as credible the applicant’s claim that four years after he left, the SLN would continue to ask about him, particularly as the basis of the dispute between them was the applicant’s complaints about the actions of the SLN, something he had not done since 2012 (CB 378 at [31]);
g)was willing to accept, on the basis of country information, that fishermen from the applicant’s village were the victims of violence by the SLN in early 2016 in the course of the SLN policing unlawful fishing activity but was not satisfied that one of the victims was the applicant’s cousin or that he was attacked on the basis of his association with the applicant. Nor did the IAA accept that in February 2016 the applicant’s cousin was harmed by the SLN because of the applicant (CB 378 at [34]);
h)also accepted that:
i)the applicant as a Tamil businessman engaged in the fishing industry was subject to stricter conditions imposed by the SLN than were his Sinhalese counterparts;
ii)the applicant may face the same situation in Mannar if he returns;
iii)this is deliberate behaviour by the Sri Lankan authorities which presents difficulties for Tamil fishermen that are not experienced by Sinhalese fishermen in the same situation; and
iv)the effect on the applicant’s fishing and fish transport business of such discriminatory actions by the SLN represents a form of economic harm that may have some impact in future on the applicant’s capacity to earn a living.
i)noted the applicant’s evidence that his business is still doing well under the stewardship of his brother, notwithstanding some problems with the SLN and, before he left, he was able to maintain and support his family through his work in that fish business;
j)did not accept that some day-to-day harassment and disruption by the SLN of his fish business is so substantial that it threatens the applicant’s capacity to subsist and was therefore not satisfied there is a real chance of the applicant facing serious harm on this basis now or in the reasonably foreseeable future (CB 381 at [43]);
k)accepted that the applicant may, on return, again be engaged in protests against either the fishing pass system or the SLN’s actions, and for that reason may again come to the notice of members of the SLN stationed in the applicant’s village but was not satisfied that he faces a real chance of serious harm now or in the reasonably foreseeable future from the SLN on the basis that he is a Tamil from Mannar in the north of Sri Lanka, involved in the fish business;
l)found that the applicant had some low level involvement with election activity in January 2010 for the UNP and that in April 2010 and March 2011 he provided some low-level support for the TNA in the form organising meetings and distributing election materials (CB 375-376 at [16]);
m)accepted that on return the applicant may again involve himself in election campaign activities in the future but found that due to the applicant not having a strong involvement with the party or a high profile and the IAA was not satisfied there is a real chance that the applicant would suffer serious harm now or in the reasonably foreseeable future because of his political views (CB 382 at [47]);
n)was willing to accept that the applicant may face a level of societal discrimination if returned but, notwithstanding the incidents of harassment in the past, he has been able to establish, build and run a successful business, support his family and remain living in his home village and was not satisfied that there is a real chance that the applicant would suffer serious harm now or in the reasonably foreseeable future because of his Tamil ethnicity (CB 382-383 at [49]);
o)accepted that the applicant departed Sri Lanka illegally and did so without the knowledge of the Sri Lankan authorities and that he may be viewed on return as an illegal departee and a failed asylum seeker (CB 380 at [36]);
p)was not satisfied the applicant faces a real chance of any harm on return to Sri Lanka for reasons of being a failed asylum seeker from a Western country, including due to his Tamil ethnicity (CB 383-384 at [52]);
q)considered the applicant’s circumstances as a whole and was ultimately not satisfied that the applicant faces a real chance of serious harm in the reasonably foreseeable future, either in the period following his arrival or on his return home, whether because of his illegal departure, having made a claim for asylum in Australia, his political involvement with the TNA and support for the UNP, his activities in protesting against the pass system and the actions of the SLN, and as a Tamil from the north involved in the fishing business. The IAA was not satisfied the applicant faces a real chance of harm on the basis of any of these, or any combination of these, factors (CB 385 at [59]);
r)in relation to the applicant’s complementary protection claims:
i)was not satisfied that there is a real risk that the applicant would be subjected to mistreatment during any possible brief period in detention on re-entry to Sri Lanka. Nor would he face a real risk of significant harm during any possible brief period in detention (CB 386 at [64]);
ii)accepted that the applicant will face harassment in the course of conducting his fish business, particularly if he continues to complain about the discriminatory nature of it and the actions of the SLN but that this does not meet the threshold of pain, suffering or humiliation required to amount to significant harm: ss.36(2A) and5(1) (CB 386 at [66]);
iii)was not satisfied that his participation in such protests give rise to a real risk of significant harm for the purposes of s.36(2)(aa) of the Migration Act (CB 386 at [67]);
iv)accepted that Tamils continue to suffer a level of societal discrimination but, based on the applicant’s circumstances, found that there is not a real risk that the discrimination or harm the applicant would face from the government or from society would amount to significant harm as defined in ss.36(2A) and 5 of the Migration Act on the basis that he is Tamil (CB 386 at [68]);
v)accepted that the applicant may again choose to participate in election-related activities upon return to Sri Lanka but found that the applicant does not have a strong involvement with the TNA (or UNP) and does not face a real chance of serious harm on that basis (CB 387 at [69]); and
vi)concluded that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm and therefore does not meet s.36(2)(aa) of the Migration Act (CB 387 at [71]).
Judicial Review Application
The amended application filed by the applicant on 18 May 2018 relies on the following ten grounds of review:
1.The Immigration Assessment Authority (“the Authority”) fell into jurisdictional error in that it failed to consider relevant considerations by failing to consider claims, or integers of claims, or information required by the Act and the law to be considered.
Particulars
a. The Authority considered that the failure of the applicant to mention some matters at the Entry Interview (Decision Record [20]) undermined the credibility of his claims or his credibility generally, and rejected his claim to have been threatened with a gun or beaten by members of the Sri Lankan Navy (Decision Record [24]), but it failed to consider the constraints of the Entry Interview.
b. The Authority failed to consider and determine whether the applicant's card was confiscated and he was beaten when he went to retrieve it, because of his role in protesting about discrimination against Tamil fishermen.
c. The Authority failed to consider and to determine the whole of the applicant's claims to have suffered serious harm or significant harm by way of harassment and discrimination, including action to delay his boat and spoil his fish.
2.The Authority fell into jurisdictional error in law in that it had regard to irrelevant considerations.
Particulars
a.The Authority attached weight to the fact that the applicant presented some claims later rather than earlier.
b.The Authority attached weight to the fact that the applicant did not present some claims or evidence at the Entry Interview.
3.The Authority fell into jurisdictional error in law in that it acted irrationally or illogical or so unreasonably that no reasonable Authority could so have acted.
Particulars
a.The Authority was unreasonable in the manner in which it dealt with the evidence given or not given by the applicant at the Entry Interview.
b.The Authority accepted that the applicant was subject to discrimination as a Tamil fisherman, and that he may again be involved in protests, and that fisherman from his village were victims of violence in early 2016. (Decision Record [33], [43]-[44]) The Authority was therefore unreasonable in being “not satisfied that the applicant faces a real chance of serious harm in the event that, on return, he again participates in protests against the fishing pass system.” (Decision [45])
c.The applicant otherwise refers to and repeats the particulars to Grounds 1 and 2.
4.The Authority fell into jurisdictional error in that it acted irrationally or illogically or in a way that was affected by legal unreasonableness:
Particulars
a.The Applicant advanced two rationales for the Sri Lankan Navy to have put a gun into his mouth in August 2011 and to have beaten him in September 2011 (“Events” Ha) (sic) his complaints about the Navy’s treatment of him and its fishing pass system (“Complaints”); (b) his political involvement (“Political Involvement”).
b.The Authority did not accept that the Applicant's Political Involvement was sufficient to explain the happening of the Events. Having so decided, it did not accept that the Events occurred.
c.The Authority did not go on to consider whether the Applicant's Complaints were sufficient to explain the happening of the Events.
d.Where two rationales (A and B) are advanced as being sufficient to explain the happening of an event, it is illogical, irrational, or unreasonable to reason from a premise that A is not sufficient to explain the happening of the event to a conclusion that therefore the event did not happen, without consideration of whether B is sufficient to explain the happening of the event.
e.The finding of non-satisfaction that the Events occurred, therefore, is affected by jurisdictional error.
5.The Authority fell into jurisdictional error in that it acted irrationally or illogically or in a way that was affected by legal unreasonableness.
Particulars
a.The Applicant advanced two rationales for his not having mentioned, in his entry interview, the fact of a gun having been put into his mouth before he left Sri Lanka:(a) (sic) mental distress and memory issues he was then suffering; and (b) that he was worried that information he provided would make it back to Sri Lanka.
b.The Authority did not accept that the Applicant's claimed mental distress and memory issues explained why he had not mentioned a gun having been put into his mouth.
c.The Authority accepted that it was plausible that the Applicant was worried that things he said in his entry interview would be relayed to Sri Lankan authorities.
d.Despite the fact particularised in particular (c) above, the Authority reasoned that the fact of the Applicant's failure to mention, in his entry interview, the fact of a gun having been put into his mouth, weighed against acceptance of that claim.
e.Where a reason is given for having not mentioned a fact in an entry interview, and that reason is accepted as plausible (as here), then it is illogical, irrational, or unreasonable to count the fact of non-mentioning as weighing against acceptance of that claim without first considering whether the reason accepted as plausible is sufficient to explain the fact of non-mentioning, and without concluding that it is not so sufficient.
f.The finding of non-satisfaction that a gun was put into the Applicant's mouth in August 2011, therefore, is affected by jurisdictional error.
6.The Authority departed from a credibility finding made by the Delegate without having regard to the additional information, opportunity, or advantage that was available to the Delegate by reason of his having observed and interacted with the Applicant in an interview, and in so doing:
a.failed to have regard to a mandatory relevant consideration; or
b.acted in a manner that was procedurally unfair; or
c.misunderstood the nature and limits of its statutory task; or
d.acted in a manner that was illogical, irrational, or unreasonable.
Particulars
e.The Applicant claimed that the Sri Lankan Navy put a gun into his mouth in August 2011 beat him in September 2011.
f.Having interviewed the Applicant, the Delegate found that those events had occurred.
g.The Delegate's finding was made including on the basis of an assessment of the Applicant's credibility.
h.The Authority did not have the information, opportunity, or advantage that the Delegate had by reason of having interviewed the Applicant
i.Nevertheless, the Authority reversed the Delegate's credibility finding.
j.In reversing a finding based on credibility, without having regard to the fact that the Delegate had additional information, opportunity, or advantage that was not available to the Authority, the Authority fell into error in one of the ways set out in 6(a)---{d) above.
7.The Authority
a. ignored relevant material in a way that affected the exercise of its power; or
b. failed lawfully to discharge its task on review of the Delegate's decision; or
c. acted in a way that was seriously irrational or illogical.
Particulars
a.The Authority weighed against finding that the Applicant had been beaten by the Sri Lankan Navy in September 2011 the fact that, as it understood it, the claimed catalyst for the beating (the Applicant's political involvement) occurred six months prior, in March 2011.
b.In fact, the Applicant's claims included that his complaints in respect of the fishing pass system and in respect of the Sri Lankan Navy's treatment of him served as a catalyst for the beating in September 2011.
c.There was no six-month gap between the Applicant's complaints and the claimed beating in September 2011.
d.In the premises, the Authority's finding is affected by jurisdictional error in one of the ways set out in 7(a}:(c) above.
8.The Authority:
a. denied procedural fairness to the Applicant; or
b. acted in a way that was legally unreasonable.
Particulars
c. The Authority weighed against finding that the Applicant had been beaten by the Sri Lankan Navy in September 2011 the fact that, as it understood it, the claimed catalyst for the beating (the Applicant's political involvement) occurred six months prior, in March 2011.
d. It further weighed against the finding the fact that, as it understood it, the Applicant had provided no explanation for why, after such a delay, the Sri Lankan Navy would beat him.
e. There was no compliance with section 57(2) of the Migration Act 1951 (Cth) in respect of the matter set out in particular (d) above.
f. The Authority affirmed the decision to refuse to grant the protection visa without first exercising the discretion conferred by s 473DC(3) to issue an invitation so that he might offer an explanation in respect of the subject matter of particular (d) above.
g.In the premises, the Authority's finding is affected by jurisdictional error in one of the ways set out in 8(a}:(b) above.
9. The Authority
a. ignored relevant material in a way that affected the exercise of its power; or
b. failed lawfully to discharge its task on review of the Delegate's decision; or
c.acted in a way that was seriously irrational or illogical.
Particulars
d. The Applicant claimed that, in March 2012, he had made a complaint to the “[N)avy boss” concerning the conduct of Naval personnel
e. The Applicant claimed that, in May 2012, a Tamil-speaking police officer had warned the Applicant that the Navy was planning to shoot him.
f. In considering whether the foregoing matters gave rise to a real risk of serious harm or a well-founded fear of persecution, reasoned that, “on [the Applicant's] own evidence, there were no repercussions from [earlier] complaints other than the navy continuing to take fish.”
g.In fact, the Applicant's evidence was that, when earlier he had complained, a gun was put into his mouth in August 2011 and he had been hung upside-down and beaten with a pipe in September 2011.
h. The Authority misconceived the Applicant's claims or failed to address them as they were made, and thereby fell into jurisdictional error of the kind set out at 9(a}---(c) above.
10.The Authority acted in a way that was seriously irrational or illogical.
Particulars
a. The Applicant claimed that, in March 2012, he had made a complaint to the “[N]avy boss” concerning the conduct of Naval personnel.
b. The Applicant claimed that, in May 2012, a Tamil-speaking police officer had warned the Applicant that the Navy was planning to shoot him.
c. The Authority accepted that Naval officers had made remarks about killing or “disappearing” the people who had complained about them, one of whom was the Applicant.
d. However, the Authority reasoned that those matters did not give rise to a real risk of serious harm or a well-founded fear of persecution by reason of the context in which the remarks were made, viz, a “party atmosphere.”
e. Without more, there is no logical basis for thinking that a threat to kill a person is less real because it is made during a “party atmosphere.”
f. The inference that the threat was not “real” is therefore not one that can reasonably be drawn from such findings of fact as were made.
As rightly pointed out by the Minister in written submissions (at paragraph 9), the applicant’s outline of submissions does not directly correspond to the grounds of the amended application. Rather, the applicant appears to have addressed the grounds “thematically”.
The way in which an applicant litigates their matter is a choice for them, relying here on counsel. However, the approach adopted by the applicant’s counsel in this case does not, in the Court’s opinion, lend itself to a clear understanding of the grounds of review.
Fortunately, the Minister addressed the grounds of review in the same manner as the applicant. Given that the approach adopted by the applicant was mirrored by the Minister in oral and written submissions, the Court will also address the applicant’s grounds of review in the same way.
Ground 1(b)
1.The Immigration Assessment Authority (“the Authority”) fell into jurisdictional error in that it failed to consider relevant considerations by failing to consider claims, or integers of claims, or information required by the Act and the law to be considered.
Particulars
…
b. The Authority failed to consider and determine whether the applicant's card was confiscated and he was beaten when he went to retrieve it, because of his role in protesting about discrimination against Tamil fishermen.
Broadly, ground 1 alleges that the IAA failed to consider claims, or integers of claims, when it rejected the applicant’s claims that he had been threatened with a gun in August 2011 and beaten in September 2011.
Unusually, counsel for the applicant does not reference particular (a) in relation to ground 1 at this stage. It is to be recalled that Ground 1(a) reads as follows:
1.The Immigration Assessment Authority (“the Authority”) fell into jurisdictional error in that it failed to consider relevant considerations by failing to consider claims, or integers of claims, or information required by the Act and the law to be considered.
Particulars
a.The Authority considered that the failure of the applicant to mention some matters at the Entry Interview (Decision Record [20]) undermined the credibility of his claims or his credibility generally, and rejected his claim to have been threatened with a gun or beaten by members of the Sri Lankan Navy (Decision Record [24]), but it failed to consider the constraints of the Entry Interview.
It appears that under the heading Ground 1(b) what the applicant is actually advancing are arguments in relation to both grounds 1(a) and 1(b). The Court proceeds on that basis. It is noted that ground 1(c) is never referenced or addressed – anywhere, either in writing or orally by the applicant.
The applicant submits that he was beaten and had a gun placed in his mouth in 2011 not only because of his political involvement (which, he says, forms the basis of the IAA’s analysis) but also because he complained about the SLN’s treatment of him as a Tamil fisherman.
The applicant submitted that he had put his claims in these terms at the entry interview (CB 20) and in a statutory declaration (CB 85-86) and that the delegate of the Minister understood the bases of these claims correctly (CB 146).
In his written submissions, the applicant relied on the Full Court decision in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (“MZYTS”). Relevantly, the plurality in MZYTS stated:
34.Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, 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, second, 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 Minister addressed ground 1(b) (and arguably 1(a), given the content of 1(a)) at paragraphs [10]-[13] in his outline of submissions as follows:
10.The Applicant contends that the Authority mischaracterised his claim that the army and navy pose a threat to his life. The Applicant submits that the threat arises from both his political involvement and because he complained about them confiscating his catch of fish. The Applicant submits that the Authority erroneously had regard only to the ‘political involvement’ aspect of this claim. This contention is advanced on two separate, but related bases:
(a)The structure of the Authority’s reasons; and
(b)The content of the Applicant’s claim and the Authority’s findings.
11.While the structure of a decision-maker’s reasons may be relevant to the interpretation of those reasons (see SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317ALR 365 at [81(e)]), this does not lead to any proposition that certain parts of a decision maker’s reasons may be considered in isolation. As the High Court has repeatedly stated reasons are to be beneficially read, as a whole, and should not be scrutinized upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which reasons are expressed (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ). Caution should therefore be taken before finding that a decision-maker has failed to have regard to a particular matter, simply because the decision maker did not include that matter under a certain sub-heading. This is made plain in Minister for Immigration and Citizenship v MZYZA [2013] FCA 572. At first instance, the Federal Magistrate found that, although the tribunal referred to a piece of evidence in its reasons and questioned an applicant about that evidence, the tribunal had failed to consider a piece of evidence because it did not mention the evidence in the ‘findings and reasons’ section of its decision. On appeal, Tracey J expressly rejected this analysis. At [47] his Honour said:
In my view the first respondent, in the present matter, has failed to establish that it would be appropriate to draw the inference that the Tribunal did not consider the letter. On the contrary, the Tribunal’s reasons make it tolerably clear that it did so. The Tribunal referred to the fact that the letter had been sent and received. The Tribunal member must have read it because he questioned the first respondent about its contents. There could be a number of reasons why the member did not thereafter again refer to the letter. One of these may have been that he did not consider it necessary to do so having regard to authorities such as Addo, Iyer and SZDXZ. Whatever the reason, it cannot be inferred that the contents of the letter had not been considered. Furthermore, the statements in the letter did not support any new claim or any integer of a claim.
12.At paragraph [19] of his submissions, the Applicant alleges that the Authority only assessed the Applicant’s claims regarding the incidents with the navy by reference to the Applicant’s political involvement. By ground 1(b) of his Amended Application, the Applicant says the Authority failed to have regard to the Applicant’s claim in the context of his protests regarding the discrimination against Tamil fisherman. These submissions ignore relevant parts of the Authority’s reasons:
(a)at [12] the Authority noted the Applicant’s claim that, throughout 2009 to 2012 he was active in protesting against the navy pass system for fishermen. At [14] the Authority accepted that the Applicant complained about the actions of the navy in harassing Tamil fishermen;
(b)at [18] the Authority noted the Applicant’s claim that the navy harassed him regularly and confiscated his NID card, demanded that the Applicant attend the navy camp to retrieve the card, and that he was regularly beaten by navy officers;
(c)at [20] the Authority did not accept that the Applicant had been threatened with a gun in August 2011, or that he had been beaten in September 2011 because of his political involvement or support of the Tamil National Alliance;
(d)at [20] the Authority also noted that, in the Applicant’s entry interview, the Applicant had made no claim regarding the political harassment by the navy, and that his only claim in regard to the navy was about the confiscation of his catch and his complaints regarding this matter;
(e)at [22] the Authority had regard to the Applicant’s claim that his NID card had been regularly confiscated, and that he was regularly beaten by the navy on account of his involvement in the March 2011 election;
(f)at [24] the Authority found that the Applicant had exaggerated his interactions with the navy, and did not accept that the Applicant was threatened with a gun or that he was beaten by members of the navy because of his support for the Tamil National Alliance;
(g)at [25] the Authority noted that, when the Applicant was asked whether he had suffered any repercussions from the navy in response to his complaints, the Applicant said he hadn’t. The Applicant stated that the navy didn’t do anything in response, other than to take his fish;
(h)at [26] the Authority noted that the Applicant had complained on a number of occasions in the past regarding the actions of the navy and, on his own evidence, there had been no repercussions other than the navy continuing to take his fish;
(i)at [39] the Authority noted its previous finding that the Applicant had been involved in protesting about the fishing pass system and that he had complained about the actions of the navy harassing Tamil fishermen;
(j)at [43] the Authority observed that the Applicant had a successful business which was still doing well under the stewardship of his brother, notwithstanding the problems with the navy. The authority found that any harassment and disruption of the navy to the Applicant’s fishing business would affect his capacity to subsist. The Authority noted it was not satisfied that there was a real chance of serious harm to the Applicant ‘on this basis’;
(k)at [44] the Authority accepted that the Applicant may again protest against the fishing pass system or the navy’s actions upon his return. Having regard to country information set out at [45] however, the Authority noted that it was not satisfied that the Applicant faces a real chance of serious harm upon his return if he again participates in protests against the fishing pass system. At [46] it noted that it was not satisfied that the Applicant would face a real chance of serious harm in the reasonably foreseeable future from the Navy on the basis that he is a Tamil from Mannar in the north of Sri Lanka, involved in the fish business;
(l)at [47] the Authority repeated its finding that the Applicant’s problems with the navy were unrelated to his political activities.
13.When the Authority’s reasons are read as a whole, it is apparent that the Applicant in his submissions to this Court has misconstrued those reasons. In particular, the Authority’s finding at [47] indicates the Authority’s cognisance of the fact that any problems the Applicant faced with the navy, were as a result of matters other than his political involvement. In other words, any problems were due to complaints made by the Applicant regarding the navy. The Authority’s reasons at [44]-[46] however highlight its finding that the Applicant would not face a real chance of harm for this reason either.
During proceedings in this Court, counsel for the applicant submitted that this matter was comparable to that found in MZABA v Minister for Immigration and Border Protection (2015) 234 FCR 425 (“MZABA”). Counsel drew the Court’s attention to paragraph 24 in MZABA wherein Bromberg J states:
In SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365, Griffiths J set out the Minister’s submissions as to the state of the authorities at [75]–[78] (which he accepted subject to provisos not here relevant), and at [81] set out additional principles relevant in determining whether the Tribunal committed jurisdictional error in failing to address a substantive and clearly-articulated submission. I will endeavour to summarise from Griffiths J’s judgment (and the authorities his Honour cited) the principles here relevant: first, the Tribunal’s duty is to review, which requires it to consider and deal with clearly-articulated submissions of substance (SZSSC at [81(a)]); second, a failure to consider a submission that was substantial and clearly articulated (SZSSC at [75], [78], citing Dranichnikov v Minister for Immigration and Multicultural Affairs(2003) 197 ALR 389 at [24]) or an undertaking of the task of review “without a consciousness and consideration of the submissions, evidence and material,“ (SZSSC at [76], citing MZYTS at [38]), could amount to jurisdictional error. Those may be different ways of expressing the same principle (SZSSC at [77], citing SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 at [23]–[24]); third, not every failure to deal with a submission, evidence, or other material, will constitute jurisdictional error (SZSSC at [81(b)], citing SZRKT at [97]). Some evidence may be irrelevant and some contentions misconceived, though there is a distinction between failure to advert to evidence that might have led to a different factual finding, and failure to address a contention which, if accepted, might establish well-founded fear for a convention reason (SZSSC at [81(c)], citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 75 ALD 630 at [46]); fourth, it may be appropriate to have careful regard to the Tribunal’s statement of decision and reasons including its summary of submissions received (and how it dealt with them) and its structure (SZSSC at [81(e)]); fifth, the burden is on the appellant to persuade the court that any failure to deal with a submission is a jurisdictional error (SZSSC at [81(g)], citing MZYTS at [53]), and the Tribunal’s reasons are not to be approached with an eye keenly attuned to detection of error (SZSSC at [81(h)], citing Salahuddin v Minister for Immigration and Border Protection(2013) 140 ALD 1 at [19]–[20])
Counsel for the applicant stressed that MZABA supported the proposition that the IAA overlooked, or failed to deal with, the fact that the principal reason given by the applicant for his claims that he had been beaten and had had a gun put into his mouth was because he had made complaints.
Counsel for the applicant also addressed the Minister’s reliance on Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 (“MZYZA”) saying that MZYZA was distinguishable because it concerned a failure to consider a piece of evidence and this case involved an apparent failure to consider a claim.
During proceedings, counsel for the Minister responded by submitting that the thrust of the appeal in MZYZA was that the Administrative Appeals Tribunal had referred to a piece of evidence at one part in its reasons but not under the heading “findings and reasons”. Counsel argued that at, first instance, the primary judge had found that this indicated that the relevant piece of evidence was not considered - a point which Tracey J (in MYZYA) refuted, saying that that inference should not be so quickly made. Counsel went on to say that in MYZYA the evidence constituted a claim by reason of its content and, as such, does have a direct application.
As is relevant to this matter, the Court notes the Minister’s reference to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) in which the plurality stated that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
The Court is also mindful of the comments made by Stone J in SZCBTvMinister for Immigration and Multicultural Affairs [2007] FCA 9 (at [26]) that a “beneficial” reading of a decision-maker’s reasons “does not require this Court to assume that a vital issue was addressed when there is no evidence of this”.
On this point, it is noted that Bromberg J in ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 (“ACE15”) examined MZYTS and the issue of mischaracterisation of an applicant’s claims stating that critical to the Full Court’s reasoning in MZYTS was that the failure of the tribunal in that case was such that it betrayed a misapprehension of the nature of the claim which it had been invited to determine and a miscarriage of the task it was required to perform (at [33]).
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“WAEE”) the Full Court stated:
[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.
(emphasis added)
Having regard to the above, the Court is not satisfied that the IAA failed here to understand the bases of the applicant’s claims. The Court accepts, and adopts, the Minister’s submissions in this regard.
It appears that the applicant has sought to rely on paragraphs [15]-[24] of the IAA’s reasons under the heading “Threats because of political involvement” in isolation. Having regard to the IAA’s reasons it cannot be said that the IAA did not genuinely consider the nature of the applicant’s claim; in particular, as they related to the applicant’s protests as a Tamil fisherman. Relevantly, the Court notes that:
a)the IAA noted the applicant’s claim that he was active in protesting against the navy pass system for fishermen from 2009 to 2012 (at [12]) and accepted that he had complained about the actions of the navy in harassing Tamil fishermen (at [14]);
b)the IAA noted the applicant’s claim that the SLN had harassed him regularly and confiscated his NID card, demanded that the applicant attend the navy camp to retrieve the card, and that he was regularly beaten by navy officers (at [18]);
c)the IAA noted that the applicant did not make any claims at his entry interview in relation to the political harassment by the navy, and that his only claim in regard to the navy was about the confiscation of his catch and his complaints regarding this matter (at [20]);
d)the IAA had regard to the applicant’s claim that his NID card had been regularly confiscated, and that he was regularly beaten by the navy on account of his involvement in the March 2011 election;
e)the IAA found that the applicant had exaggerated his interactions with the SLN (at [24]), and did not accept that the applicant was threatened with a gun or that he was beaten by members of the navy because of his support for the TNA;
f)the applicant was asked whether there were any repercussions from the SLN as a result of his complaints. The applicant said no they didn’t do anything because he made a complain but they came to his hut and took fish (at [26]);
g)the applicant had provided evidence that there were no repercussions from the SLN as a result of the applicant’s complaints (at [26]);
h)the IAA was also aware that the applicant had protested about the SLN’s treatment of him as a Tamil fisherman and considered whether the applicant would face a real chance of serious harm on this basis (CB 381 at [43]-[44]); and
i)the IAA reiterated its finding that the applicant’s problems with the SLN were unrelated to his political activities (at [47]).
The IAA’s reasons reveal that it asked itself whether the applicant had suffered harm because he protested about the SLN’s treatment of him as a Tamil fisherman, finding he had not. The material it considered was relevant to the resolution of that question.
The Court agrees with the Minister’s contention that MZYZA is applicable to this matter and is persuaded by Tracey J’s conclusions in that case at [47]. It is of little consequence that the IAA did not address in detail the issues relating to the result of the applicant protesting about the SLN’s treatment of him as a Tamil fisherman under the heading “Threats because of political involvement”.
There is nothing in the IAA’s reasons that gives rise to the sort of error seen in MZYTS – i.e. a misapprehension of the basis of the claim and a miscarriage of the statutory task of determining the applicant’s claim or integers of claims.
For the reasons outlined above, ground 1(b) fails.
Ground 1 (a), Ground 2 and Ground 3(a)
1.The Immigration Assessment Authority (“the Authority”) fell into jurisdictional error in that it failed to consider relevant considerations by failing to consider claims, or integers of claims, or information required by the Act and the law to be considered.
Particulars
a. The Authority considered that the failure of the applicant to mention some matters at the Entry Interview (Decision Record [20]) undermined the credibility of his claims or his credibility generally, and rejected his claim to have been threatened with a gun or beaten by members of the Sri Lankan Navy (Decision Record [24]), but it failed to consider the constraints of the Entry Interview.
…
2.The Authority fell into jurisdictional error in law in that it had regard to irrelevant considerations.
Particulars
a.The Authority attached weight to the fact that the applicant presented some claims later rather than earlier.
b.The Authority attached weight to the fact that the applicant did not present some claims or evidence at the Entry Interview.
3.The Authority fell into jurisdictional error in law in that it acted irrationally or illogical or so unreasonably that no reasonable Authority could so have acted.
Particulars
a.The Authority was unreasonable in the manner in which it dealt with the evidence given or not given by the applicant at the Entry Interview.
The applicant submits that these jurisdictional errors stem from the IAA impermissibly rejecting his claims that he was beaten and threatened in 2011 because he had failed to mention them in his entry interview.
In this regard, the applicant relied on the Full Court decision of MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 (“MZZJO”) which provides, relevantly:
[56]On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
[57]Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.
Before this Court, the applicant submitted that the IAA impermissibly rejected his claims that he was beaten and threatened in 2011 because he had failed to mention them in his entry interview and that this reliance on an entry interview demonstrates the kind of jurisdictional error identified in MZZJO at [57].
The applicant submitted that there were sound reasons to justify the differences between the applicant’s claims at the entry interview and those advanced before the delegate. As such, it was contended, it was unreasonable to infer that simply because a fact was not mentioned at an entry interview does not mean that the fact does not exist.
The applicant further submitted that the IAA’s task is to engage in a de novo review of the merits of the decision and, by scrutinizing the differences between the applicant’s claims made at the entry interview and those ultimately advanced in his application, the IAA was, in effect, failing to properly review the application and failing to undertake its task of review.
In response, the Minister submitted:
43.Again, these grounds are premised upon a misconstruction of the Authority’s reasons. As the Authority made clear at [20]-[24], it rejected the Applicant’s claims in relation to the August 2011 and September 2011 incidents because:
(a)he failed to mention these claims in his entry interview: [20];
(b)one of his reasons for not mentioning these claims, that he could not remember them, was inherently implausible: [21]. Accordingly, the Authority was not relying upon the Applicant’s mere omission of information, but also his subsequent explanation for that omission;
(c)at [22] the Authority noted that, whereas the Applicant claimed in his application that he had been beaten regularly by the navy, he stated that the beating only occurred once in September 2011. This contradicts the Applicant’s claims that he was threatened in both August and September 2011;
(d)at [23] the Authority referred to information provided by the Applicant during the SHEV interview, in addition to country information, to the effect that a navy camp is in the Applicant’s home village. The Authority noted that this information was at odds with the Applicant’s claim to have gone into hiding between August 2011 and August 2012 in his own home;
(e)for all of these reasons, the Authority rejected these claims at [24].
44. These grounds should therefore be rejected.
The Court finds that the IAA considered the reasons given by the applicant for why he did not raise some of his claims at the entry interview (CB 376 and 377 at [20] and [21]). The IAA noted that when the delegate put to the applicant the fact he was raising new claims may raise issues of his credibility the applicant stated (at [20]) that:
a)he was nervous about interview information being provided to his home country; and
b)had memory issues and had undergone mental health treatment.
Unlike the case in MZZJO, the IAA did not just rely upon what was not said by the applicant at the entry interview on 23 January 2013. Rather, it outlined various bases for its credibility finding (which it outlined at [18]–[24] of its reasons).
The IAA’s rejection of the applicant’s claims included a consideration of the following:
a)the IAA found it plausible that the applicant omitted information because he was nervous about it being provided to his home country (at [21]) but did not accept his claim that he could not remember something as serious as being threatened with a gun or being hung upside down and beaten;
b)the applicant was unable to explain why he was apparently beaten by the SLN some six months after the election in March 2011 (at [22]); and
c)there were various inconsistencies in the applicant’s claims. The IAA then made findings about these claims having regard to, in particular, the proximity of the SLN camp to his village (CB 377 at [23]).
These findings were open to the IAA and cannot be said to lack an evident and intelligible justification: Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75]–[76] per Hayne, Kiefel & Bell JJ. The cumulative effect of these findings was, amongst other things, that the IAA rejected the applicant’s claims.
In relation to whether the IAA failed to consider the constraints of the entry interview, a Court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [39]-[40].
The scope of the entry interview is not something which must be addressed explicitly in the IAA’s reasons as a matter of course. Nor, in this case, was it incumbent upon the IAA to explain the scope of the entry interview before commenting on the findings it had made in relation to it.
The IAA’s reasons should not to be read with a keen eye for error: SZSSC at [81(h)], citing Salahuddin v Minister for Immigration and Border Protection (2013) 140 ALD 1 at [19]–[20]). In the circumstances, the Court finds that a failure to explicitly explain the constraints of the entry interview does not amount to jurisdictional error.
In relation to whether the IAA acted “unreasonably” in relation to the way in which it dealt with the evidence given, or not given, by the applicant at the entry interview, the Court is guided by the principles outlined by the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (“DAO16”), as follows:
30. The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
...A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny...
(citations omitted)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
The Court notes that the statements made by the Full Court in MZZJO at [56] and [57] did not form part of the Full Court’s reasons for decision in that case and therefore do not create principles that are binding on this Court: ARA17 v Minister for Immigration & Anor [2018] FCCA 342 (“ARA17”). In this regard, the Court notes the comments made by Judge Smith of this Court in ARA17 (at [25]) that in MZZJO the Full Court was stating nothing more (in those particular paragraphs) than what might be considered good administrative practice in light of the practical realities that might face particular applicants.
Certainly, it can be argued that as a best practice caution should be exercised by the IAA when placing significant weight on things that were not said by an applicant at an entry interview, but that does not support a proposition that no weight should be attached to any such omissions as a matter of course. The IAA was entitled to utilise what was not said by the applicant at the entry interview to form a view in relation to the applicant’s credibility and therefore the validity of the applicant’s claims.
It cannot be said that way in which IAA referenced and relied upon omissions evident at the entry interview lacked a logical, rational or probative basis. It is clear from [20]-[24] of the IAA’s reasons for decision that it considered the entry interview omissions and various other issues when it formed a negative view of the applicant’s credibility and ultimately rejected the applicant’s claims.
A claim of irrationality or illogicality can only be made out if the applicant demonstrates that the IAA formed a view that no rational or logical decision maker could have arrived at on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [130] per Crennan and Bell JJ.
Having regard to the principles in DAO16 at [30] and SZMDS at [130], it can be said that the reasons provided by the IAA reference the applicant’s omissions in a reasonable way. The IAA’s subsequent findings were open to it and cannot be said to be illogical, irrational or unreasonable.
The various statements made by the applicant go directly to his credibility and a high degree of caution must be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96].
The Court finds that the applicant’s failure to make claims at different times is a relevant consideration and, in the circumstances, cannot be said to be otherwise. Overall, the IAA made findings that were open to it on the material before it. No jurisdictional error can be seen here in relation to the grounds of review as articulated.
For the reasons provided above, these grounds of review fail.
Ground 3(b)
3.The Authority fell into jurisdictional error in law in that it acted irrationally or illogical or so unreasonably that no reasonable Authority could so have acted.
…
b.The Authority accepted that the applicant was subject to discrimination as a Tamil fisherman, and that he may again be involved in protests, and that fisherman from his village were victims of violence in early 2016. (Decision Record [33], [43]-[44]) The Authority was therefore unreasonable in being “not satisfied that the applicant faces a real chance of serious harm in the event that, on return, he again participates in protests against the fishing pass system.” (Decision [45])
The applicant submitted that the following findings made by the IAA were uncontroversial:
a)the Applicant is a Tamil (CB 374 at [9]);
b)he was a self-employed businessman in the business of buying, transporting, and selling fish in Mannar (CB 374 at [10]);
c)between 2009 and 2012, the Applicant was involved in protesting the fishing pass system and also complained about the actions of the Navy (CB 375 at [14]);
d)in May 2012, the Navy was talking about shooting, killing, abducting or making all the people who had complained about their actions disappear, including the Applicant (CB 377 and 328 at [25]–[26]);
e)because of his profile and his history of making complaints, the Navy asked about the Applicant for a while after he left Mannar (CB 378 at [31]);
f)in 2016, fisherman from the Applicant’s village were the victims of violence in the course of the Navy policing illegal fishing activity (CB 379 at [34]);
g)if the Applicant were to return to Mannar, he may again engage in protest against either the fishing pass system of the Navy’s actions (CB 381 at [44]);
h)in that event, he may again come to the notice of members of the Navy stationed near his village (CB 381 at [44]); and
i)in the past, the SLN has used excessive and unnecessary force against demonstrators (CB 381 at [44]).
The applicant contended that, notwithstanding these findings, the finding made by the IAA (at paragraphs [43] and [45] of its decision) that the applicant did not face a real chance of serious harm was predicated upon the conclusion that the applicant had not been physically harmed in the past as a result of his protest activities.
The applicant contended that this finding discloses two errors. Firstly, it was argued that the uncontroversial factual findings made by the IAA favour a finding that there is a real chance of serious harm. The applicant asserted that the only consideration counting against a finding of a real chance of serious harm is the absence of past persecution and, in dealing with an absence of past persecution as it did, the IAA misdirected itself and fell into jurisdictional error.
In support, the applicant referenced the High Court’s decision in Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 wherein Justices Gummow and Hayne stated:
[192]The question that the Tribunal was called on to decide in this case was whether the applicant showed that she then had a well‑founded fear of persecution on a Convention ground. What is meant by "well‑founded" has been considered by this Court in several cases [168] and it is not suggested that the Tribunal failed to apply the correct principles in this regard. No doubt, a Tribunal will often find assistance in deciding whether a person has a well‑founded fear of persecution by looking at that person's prior experiences. If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded. But proving persecution in the past is not an essential step in an applicant demonstrating that he or she has a well‑founded fear of persecution. Regrettably, cases can readily be imagined where an applicant's fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past.
Secondly, for broadly the same reasons, the applicant submitted that the IAA’s finding (again at paragraphs [43] and [45] of its decision) involved serious illogicality or irrationality. It was submitted that, given that all of the factors considered by the IAA lent themselves to the finding that there is a real chance of an event occurring, it was illogical to find that there was no chance of it occurring in the future only because it had not happened in the past.
Conversely, the Minister submitted:
45.The Applicant alleges that the Authority erroneously relied upon the Applicant’s past experiences, to the exclusion of all other matters, to find that the Applicant would not face serious harm upon his return. The Applicant states at paragraph 65 of his submissions that “…The only basis advanced for this conclusion was that the applicant has not been physically harmed in the past on the basis of his activities in protesting the pass system…”
46.Again, this ground proceeds upon a mischaracterisation of the Authority’s reasons. The Authority noted in the final sentence of [45], “On balance, I am not satisfied the applicant faces a real chance of serious harm in the event that, on return, he again participates in protests against the fishing pass system…” The matters which the Authority balanced included:
(a)the fact the Applicant’s fishing business was still (i.e., at the time of the Authority’s decision) doing well despite the alleged problems with the navy: at [43];
(b)country information to the effect that the government had committed to allow freedom of speech and that activists and journalists had reported that surveillance of them had reduced: at [45];
(c)the fact the Applicant had not been harmed in the requisite sense in the past: [45];
(d)the rejection of the balance of the Applicant’s claims regarding persecution (see the submissions in response to ground 1, particular (b) above).
47.There is no basis to read the Authority’s reasons as involving an assumption that, to be owed protection, one must have suffered past persecution. Rather, the Authority’s reasons, when read as a whole, disclose that the Authority considered the Applicant’s claims in their totality and correctly applied the law.
The Court agrees with the Minister’s submissions. A balanced reading of the IAA’s reasons shows that the IAA did not limit its consideration of future risk to the applicant to past events or find that past persecution was a necessary requirement in order for the applicant to be owed protection.
The IAA noted that the country information indicated that a tolerance for political dissent in Sri Lanka can be limited but that it is increasingly accepted. The IAA was also persuaded by DFAT information that the new government in Sri Lanka had publicly committed to allowing freedom of speech and that activists and journalists have reported that surveillance has reduced since January 2015 (CB 382 at [45]).
The weight to be given to country information is a matter for the IAA. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] their Honours Gray, Tamberlin and Lander JJ found:
13.In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) [1993] FCA 545; (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka. The appellants complained in their written submissions that the Tribunal engaged in this exercise at all. In his oral submissions, the first appellant said that it was a legal error to base a conclusion on a hypothesis about what might happen in the future. These submissions cannot be accepted. The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a ‘mere guess’ and by relying on ‘country information’ that did not present a true picture. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
(emphasis added)
The IAA also considered that the applicant had not been physically harmed in the past on the basis of his activities in protesting against the pass system and its implementation. Nor was the IAA satisfied that he had been arrested or detained by authorities because of those activities.
The Court notes the following comments made in SZTME v Minister for Immigration & Anor [2014] FCCA 2790 (which was upheld on appeal in SZTME v Minister for Immigration and Border Protection [2015] FCA 574) by Nicholls J:
84.Past events can play a role in determining whether an applicant faces a real chance of persecution on return. That is, in the determination of what is likely to occur in the reasonably foreseeable future (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 574). As was said in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, past events may often provide a reliable means of predicting future persecution, but that will not always be so. Indeed an applicant does not have to establish persecution in the past to establish a well-founded fear of persecution in the future (Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 (“Abebe”) at [192] per Gummow and Hayne JJ).
Here, a consideration of the applicant’s past events was appropriate in determining the future risk to the applicant.
The Court also notes that the IAA was “on balance” not satisfied the applicant faces a real chance of serious harm in the event that, on return, he again participates in protests against the fishing pass system. The use of the term “on balance” here should not be seen as the IAA paying lip service to a consideration of the matters relevant to determining the foreseeability of future risk to the applicant. Rather, it demonstrates a balancing of the considerations the IAA analysed, including country information. The analysis undertaken shows a logical connection between the material and IAA’s findings.
In Wu Shan Liang, Kirby J stated (at [29]):
The process of determination involves the delegate's making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the ‘real chances’ affecting the treatment of the applicant if he or she were to be returned ...
Here, the IAA correctly and consistently applied the language of “real chance” in its findings and conclusions. The Court finds that the IAA balanced the various considerations it was required to assess. The IAA’s findings were open to it on the evidence before it and reasonable in the circumstances.
In the circumstances the Court is not satisfied that the IAA’s conclusion or reasoning can be described as illogical, unreasonable or irrational: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.
Accordingly, ground 3(b), as articulated, is rejected and fails. No jurisdictional error can be seen here.
Grounds 4 and 5
4.The Authority fell into jurisdictional error in that it acted irrationally or illogically or in a way that was affected by legal unreasonableness:
Particulars
a.The Applicant advanced two rationales for the Sri Lankan Navy to have put a gun into his mouth in August 2011 and to have beaten him in September 2011 (“Events”Ha) (sic) his complaints about the Navy’s treatment of him and its fishing pass system (“Complaints”); (b) his political involvement (“Political Involvement”).
b.The Authority did not accept that the Applicant's Political Involvement was sufficient to explain the happening of the Events. Having so decided, it did not accept that the Events occurred.
c.The Authority did not go on to consider whether the Applicant's Complaints were sufficient to explain the happening of the Events.
d.Where two rationales (A and B) are advanced as being sufficient to explain the happening of an event, it is illogical, irrational, or unreasonable to reason from a premise that A is not sufficient to explain the happening of the event to a conclusion that therefore the event did not happen, without consideration of whether B is sufficient to explain the happening of the event.
e.The finding of non-satisfaction that the Events occurred, therefore, is affected by jurisdictional error.
5.The Authority fell into jurisdictional error in that it acted irrationally or illogically or in a way that was affected by legal unreasonableness.
Particulars
a.The Applicant advanced two rationales for his not having mentioned, in his entry interview, the fact of a gun having been put into his mouth before he left Sri Lanka::::{a) (sic) mental distress and memory issues he was then suffering; and (b) that he was worried that information he provided would make it back to Sri Lanka.
b.The Authority did not accept that the Applicant's claimed mental distress and memory issues explained why he had not mentioned a gun having been put into his mouth.
c.The Authority accepted that it was plausible that the Applicant was worried that things he said in his entry interview would be relayed to Sri Lankan authorities.
d.Despite the fact particularised in particular (c) above, the Authority reasoned that the fact of the Applicant's failure to mention, in his entry interview, the fact of a gun having been put into his mouth, weighed against acceptance of that claim.
e.Where a reason is given for having not mentioned a fact in an entry interview, and that reason is accepted as plausible (as here), then it is illogical, irrational, or unreasonable to count the fact of non-mentioning as weighing against acceptance of that claim without first considering whether the reason accepted as plausible is sufficient to explain the fact of non-mentioning, and without concluding that it is not so sufficient.
f.The finding of non-satisfaction that a gun was put into the Applicant's mouth in August 2011, therefore, is affected by jurisdictional error. The applicant alleges that IAA acted “irrationally” when it rejected his claim that a gun was put into his mouth in August 2011 and his claim that he was beaten in September 2011.
In written submissions, the applicant argued that “three irrationalities” affected the way in which the IAA approached its findings:
25.First, it ignored or overlooked that the rationale proffered by the Applicant for his mistreatment was not limited to his political involvement but extended also to his complaints about the Navy’s handling of the fishing pass system. If the claim advanced by a visa applicant is, in effect, “because of A and also because of B, fact X occurred,” it is an obvious illogicality or irrationality for the decision-maker to reason, “I do not accept that the occurrence of B is sufficient to explain the happening of fact X.” It would remain to consider, and the IAA did not here do so, whether the occurrence of A is sufficient to explain X.
26. Second, the illogicality is particularly acute where, as here, the IAA is making findings based on the inherent plausibility or implausibility of facts (having accepted that that their foundational predicates exist) (see [22]–[23] above).
27. Suppose a man claims to have been beaten by a shopkeeper. Suppose a decision-maker asked the man, “why were you beaten?”, and the man answered, “for two reasons: I told the shopkeeper that I had a slight preference for another shop across town, and also because I smashed his display cabinet to smithereens.” It would involve obvious illogicality for the decision-maker to reason, “it is inherently implausible that you would be beaten for expressing your slight preference,” and then to reject that the man had been beaten without considering whether the smashing of the display cabinet provided a plausible motivation for the beating.
28.So it is here: the Applicant said that for two reasons —political actions; complaints about Naval conduct — he was beaten and threatened with a gun. The IAA reasoned that it was inherently implausible that the Applicant’s political actions were the motive for beatings and threats. It never considered whether the Applicant’s complaints, which it accepted he made, served as such a motive. This involves vitiating illogicality or irrationality.
29. Third, there is a similar illogicality at D [21] (CB376–377). The Applicant was asked why he had not disclosed the beatings and threats in his entry interview. The Applicant gave two reasons: he had memory difficulties, and also because he was worried that information he provided would make it back to Sri Lanka (D [21]). The IAA rejected the former reason, but accepted the latter as “plausible” (D [21]). Inferentially, however, the IAA appears to have treated the Applicant’s earlier non-disclosure of the beatings and threats as counting against the credibility of his claims (see D [20] and D [21]).
30.This, again, is illogical. If two reasons are not given for having not disclosed a fact, and one is found not to be plausible but the other is plausible, before weighing non-disclosure into the credibility assessment against the claimant it is logically necessary to consider whether the plausible reason - here, fear of release of the disclosed information to Sri Lankan authorities - is sufficient to explain the non-disclosure. The IAA nowhere performed this analysis. Accordingly, again, its approach at D [20]-D [21] involves vitiating illogicality or irrationality.
Conversely, the Minister submitted:
29.…[T]he Applicant has taken paragraph [22] of the Authority’s reasons out of context. The Authority was not there referring to any delay between the beating and any complaints the Applicant made regarding the navy. Rather, the Authority was referring to the delay between the March 2011 election and the date on which the Applicant claimed to have been beaten. That is why the Authority found, “The Applicant did not provide an explanation for why, after such a delay, the SLN would allegedly beat him because of that support”. It is clear, when the Authority’s reasons are read properly, that the Authority was casting doubt on the Applicant’s claim to have been beaten on the basis of his involvement in the March 2011 election. This is what the Applicant claimed (see CB 85 at [14]-[15]). There was therefore nothing wrong with the Authority considering, and then dealing with this aspect of the claim.
The Court agrees with the Minister’s submissions in this regard.
Given the Court’s findings above that the IAA did consider both bases of the applicant’s claims, a fair reading of the IAA’s reasons at [22] shows that here the IAA made a finding in relation to the applicant’s claim regarding his political support only, the effect of which was that it rejected one of the two explanations proffered by the applicant for why he had a gun put in his mouth and why he was beaten.
It is clear that the IAA limited its findings to the political support explanation offered by the applicant when it stated “because of that support”. It is clear that the IAA does not, in [22] of its reasons, intend to deal with the applicant’s claim that he had been harmed by reason of complaints he had made in that paragraph. This is dealt with elsewhere in its reasons.
The IAA was entitled to deal with the claims made by the applicant and it was open to the IAA to reject those claims on the material it had before it.
To read [22] of the IAA’s reasons in the way proposed by the applicant would be too narrow and with an eye keenly attuned to detection of error: SZSSC at [81(h)], citing Salahuddin v Minister for Immigration and Border Protection (2013) 140 ALD 1 at [19]–[20])
For the reasons given above, and noting the Court’s comments in relation to grounds 1(b), 4 and 5, the Court finds that the IAA did not fall into jurisdiction error in the manner alleged in ground 7.
Accordingly, ground 7 fails.
Ground 8
8.The Authority
a. denied procedural fairness to the Applicant; or
b. acted in a way that was legally unreasonable.
Particulars
c. The Authority weighed against finding that the Applicant had been beaten by the Sri Lankan Navy in September 2011 the fact that, as it understood it, the claimed catalyst for the beating (the Applicant's political involvement) occurred six months prior, in March 2011.
d. It further weighed against the finding the fact that, as it understood it, the Applicant had provided no explanation for why, after such a delay, the Sri Lankan Navy would beat him.
e. There was no compliance with section 57(2) of the Migration Act 1951 (Cth) in respect of the matter set out in particular (d) above.
f. The Authority affirmed the decision to refuse to grant the protection visa without first exercising the discretion conferred bys 473DC(3) to issue an invitation so that he might offer an explanation in respect of the subject matter of particular (d) above.
g.In the premises, the Authority's finding is affected by jurisdictional error in one of the ways set out in 8(a}:(b) above.
The applicant argues that the IAA erroneously failed to exercise its discretion under s 473DC of the Migration Act in making the following finding in its reasons for decision:
22.I also note that after claiming in his application that the confiscation of his NID card happened regularly and that he was regularly beaten by the SLN because of his involvement with the election in March 2011, the applicant stated that it happened only once and that it was in September 2011, some six months after the March 2011 election. The applicant did not provide an explanation for why, after such a delay, the SLN would allegedly beat him because of that support.
The applicant submitted that the delegate did not identify a six-month delay between March and September 2011 as counting against the applicant’s credibility because it correctly understood his claims concerning the beatings in September 2011 and, accordingly, did not ask him for an explanation for a “non-existent” delay.
The applicant argued that IAA’s reliance upon the purported fact of delay, where no explanation was sought in respect of that fact by the delegate, gives rise both to legal unreasonableness and to a denial of procedural fairness.
The applicant stated that the consequence of the IAA’s reasoning process is that the fact upon which it relied (as being part of the reason for refusing to grant the applicant the visa) was never put to the applicant so that he might comment on it. The net effect of this submission is that the IAA should have exercised its discretion under s.473DC of the Migration Act and put ‘new information’ (that there had been a 6 month delay between the applicant’s involvement in the election in March 2011 and the alleged beating which occurred in September 2011) to the applicant.
The applicant submitted that the circumstances in this matter were largely analogous to those in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“M174”) and drew the Court’s attention to [49] in that decision, which reads:
The other scenario, which the plaintiff argues exists in the present case, is where relevant information in respect of which there has been non-compliance with s 57(2) was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. … The Authority would have the capacity to exercise the discretion conferred on it by s 473DC(3) to invite the referred applicant to give new information in response to the relevant information and, in the context of issuing that invitation, to give the relevant information or particulars of it to the referred applicant. And the Authority would risk transgressing the bounds of reasonableness in the conduct of the review under s 473DB were the Authority to go on to treat the information as the reason, or a part of the reason, for affirming the decision to refuse to grant the protection visa without first exercising the discretion conferred by s 473DC(3) to issue such an invitation.”
The applicant submitted that:
50.Moreover, it transgressed the bounds of reasonableness, as their Honours in Plaintiff M174/2016 identified that it might, “to treat the [six-month delay] as … part of the reason, for affirming the decision to refuse to grant the protection visa without first exercising the discretion conferred by s 473DC(3) to issue such an invitation.”
The Minster submitted that the passage from M174 relied upon by the applicant is inapt to the applicant’s circumstances. The Minster argued that the applicant wrongly characterised the applicant’s evidence that there was a 6 month delay as ‘new information’ for the purposes of s 473DC of the Migration Act, being information that was not before the Minister when the Minister (or delegate) made the decision under 65 of the Migration Act, and information that the Authority considers may be relevant.
The Minister submitted that:
34.The emphasis upon information in s 473DC should be read consistently with the meaning attributed to that term in ss 57, 359A and 424A, with the caveat that, for the purposes of s 473DC, the information must not have been before the Minister (or the delegate). That is, information refers to the existence of evidentiary material or documentation, and not subjective appraisals, thought processes, identified gaps or defects in an Applicant’s own evidence (see generally, SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18]; see also, in relation to Part 7AA and s 473DC: DZU16 v Minister for Immigration & Anor [2017] FCCA 851 at [81]; CQY16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 236 at [81], [98]-[100]). As the Full Court in DGZ16 noted at [72] and [76]:
We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate.
…
It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.
35.The information that the Applicant says ought to have been put to him represented the Authority’s subjective appraisal and thought processes regarding identified gaps and defects in the Applicant’s own evidence. As such, it was not ‘new information’ for the purposes of s 473DC and did not need to be put to the Applicant for his comment.
The IAA is required to review a fast track reviewable decision without accepting or requesting new information and without interviewing the referred applicant: s.473DB of the Migration Act.
Subdivision C of Div 3 of Pt 7AA allows the IAA to obtain additional information in limited circumstances. Sections 473DC and 473DD of the Migration Act set out the circumstances in which the IAA can get and consider new information as part of its review.
Specifically, s.473DC of the Act provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
The Court agrees with the Ministers’ submission that the IAA’s finding that there had been a 6 month delay between the applicant’s involvement in the election in March 2011 and the alleged beating which occurred in September 2011 was not “new information”.
In CQY16 v Minister for Immigration & Anor [2017] FCCA 236 (citing SZBYR v Minister for Immigration (2007) 81 ALJR 1190 (at [18]) per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) Judge Driver said (at [81]) that the word “information”, as it appears in provisions such as s.473DE(1) (and s.473DC), refers to “the existence of evidentiary material or documentation” and not to the Authority’s “subjective appraisals, thought processes or determinations”.
The Court finds that the content of paragraph [22] of the IAA’s reasons is not new information for the purposes of s.473DC of the Migration Act. Rather, it is best described as a determination or thought process.
Further, in rejecting the applicant’s submission that the IAA’s finding that there had been a 6 month delay is “new information” the Court notes that the delegate said in its reasons (at [46]-[55]) that the applicant had cited his involvement with the TNA elections as a catalyst for the mistreatment he suffered in 2011.
The applicant informed the delegate that one of the reasons for this mistreatment was that he had been assisting TNA candidates earlier in 2011 (CB 147 at [50]). The election for the TNA candidates he supported was in March 2011. The applicant claimed that after the March 2011 election the SLN harassed him regularly (CB 142 at [5]).
The delegate accepted that the applicant was arbitrarily detained and assaulted in September 2011 and threatened with a gun in August 2011 (CB 147 at [56]).
Given that his involvement with the TNA elections was put forward by the applicant as a catalyst for the mistreatment he suffered in 2011 and noted that after the March 2011 election the SLN harassed him regularly this “information” (the 6 month delay) cannot be said to be information that was not before the Minister when the Minister (delegate) made the decision under section 65: s.473DC(1) of the Migration Act.
There is no authority for the proposition that the IAA cannot come to a different conclusion to that of the delegate and it was certainly open to the IAA to make a new assessment on the material it had before it.
Similarly to DGZ16, the material and issues in question were already before the delegate. DGZ16 involved the IAA making a decision on the same material that was also before the delegate (DGZ16 at [71], [72] and [76]) and it is entirely open to the IAA to disagree with the delegate’s evaluation of the material without providing the applicant an opportunity to respond: DGZ16 at [76].
The particular circumstance of this case fall short of engaging any obligation upon the IAA to exercise the power under s.473DC(3) of the Migration Act.
Accordingly, ground 8 fails.
Ground 9
9. The Authority
a. ignored relevant material in a way that affected the exercise of its power; or
b. failed lawfully to discharge its task on review of the Delegate's decision: or
c.acted in a way that was seriously irrational or illogical.
Particulars
d. The Applicant claimed that, in March 2012, he had made a complaint to the “[N)avy boss” concerning the conduct of Naval personnel
e. The Applicant claimed that, in May 2012, a Tamil-speaking police officer had warned the Applicant that the Navy was planning to shoot him.
f. In considering whether the foregoing matters gave rise to a real risk of serious harm or a well-founded fear of persecution, reasoned that, “on [the Applicant's] own evidence, there were no repercussions from [earlier] complaints other than the navy continuing to take fish.”
g.In fact, the Applicant's evidence was that, when earlier he had complained, a gun was put into his mouth in August 2011 and he had been hung upside-down and beaten with a pipe in September 2011.
h. The Authority misconceived the Applicant's claims or failed to address them as they were made, and thereby fell into jurisdictional error of the kind set out at 9(a}---(c) above.
The applicant alleges that the IAA’s finding at [26] evidences a misunderstanding of the applicant’s claims because the applicant’s evidence, contrary to what is suggested at [26], was that he did, in fact, suffer repercussions as a result of making complaints.
The applicant submitted that if the IAA had properly understood the applicant’s claims (including that he was beaten and had had a gun put into his mouth because of his complaints), it would not have said (as it did at paragraph [26]) that, “on his own evidence, there were no repercussions from [his] complaints other than the [N]avy continuing to take fish.”
The applicant submitted that the reasons given by the IAA for finding that the SLN’s threat to kill the applicant was not “real” because “on [the applicant’s] own evidence,” there had been no earlier repercussions in respect of his complaints was not, actually, what the evidence showed.
The applicant argued that his evidence was that he had been beaten and threatened with a gun and it was the IAA’s misunderstanding or mischaracterisation of his claims or evidence that gave rise to the finding at [26]. This finding, it is claimed, was unavailable to the IAA.
During the proceedings, counsel for the applicant drew the Court’s attention to the second affidavit of Ms Ambercaplin in which she transcribed a recording of the interview the Ministerial delegate had had with the applicant on 26 April 2016. Counsel emphasised the following exchange between the delegate (referred to as “Member” in the affidavit) and the applicant:
MEMBER: Did the Navy officers ever have any repercussions from your complaints to the Church or to the local Police?
APPLICANT: What do you mean by
Did they ever get into trouble because you were making complaints to the Church and the local Police?
APPLICANT: No, but they didn’t do anything because we made the complaint, but they come to our fisherman hut and take fish by force,
MEMBER: Okay, but if… if they weren’t being punished or have any repercussions cause you were making complain, why not they care so much about you making a complaint to the Church and the local Police?
Counsel for the applicant submitted that, when the applicant responded “they didn’t do anything because we made the complaint”, the applicant meant that nothing had happened to the SLN as a result of his complaints. As such, it was wrong for the IAA to make its finding (at [26]) that on the applicant’s own evidence there were no repercussions from those complaints other than the SLN continuing to take his fish.
In response, the Minister argued that the applicant has taken paragraph 26 of the IAA’s reasons out of context. It was stressed that this paragraph must be read with paragraph 25 of the IAA’s reasons, in which the IAA noted that in the SHEV interview “the Applicant was asked whether there were any repercussions to the navy from complaints. He said, no, they didn’t do anything because he made the complaint but they come to the hut and took his fish…”. The Minister argued that in this context the IAA’s reference (in [26]) to the applicant’s own evidence is correct and flows logically from the evidence considered.
In response to the applicant’s submissions regarding the exchange between the delegate and the applicant at the interview on 26 April 2016, Counsel of the Minister submitted that emphasis should not be placed on the questions that were asked of the applicant but on his responses. The Minister argued that when the IAA made reference to the spontaneity of the applicant’s evidence in [26] of its reasons it was focussing on what was revealed by his responses – not on whether he understood the nature of the question.
Relevantly, paragraphs [25] and [26] of the IAA’s reasons provide as follows:
25. In his SHEV interview the applicant was asked about his claim that in May 2012 a Tamil-speaking police officer warned him that the SLN was planning to shoot him. The applicant stated that the navy and police were stationed together and that there was a Tamil speaker from Batticaloa who was good with the Tamil people. He would frequently let people know about what the navy was planning to do the following day. The applicant stated that the officer came to his place and said during a party at the base, the navy was talking about shooting, killing, abducting or making all the people who had complained about the actions of the navy disappear. The applicant stated that all the people involved have, as a consequence, left Sri Lanka and gone overseas for their own safety. When the delegate asked the applicant why, 10 months after the August 2011 incident the navy would still be interested in him, the applicant stated that the fishermen made complaints consistently every couple of months about the actions of the navy in torturing and harassing them. The applicant was asked whether there were any repercussions to the navy from complaints. He said, no, they didn’t do anything because he made the complaint but they came to the hut and took fish. He made a complaint to the navy boss in 2011 about the navy taking fish without paying and that the last time he made a complaint was in March 2012.
26. The applicant’s evidence in his SHEV interview on this issue was detailed and spontaneous and I accept, given that it happened in March 2012 when the applicant stated he had made a complaint about the navy, that it is plausible that the applicant was told that in a party atmosphere, some remarks were made by navy officers about killing or ‘disappearing’ the people who had complained about them, one of whom was the applicant. However, the applicant had complained before on a number of occasions about the actions of the SLN and on his own evidence, there were no repercussions from those complaints other than the navy continuing to take fish. Taking into account the circumstances in which the remarks were made (during a party) and in the absence of any evidence that any action was taken against any of the fishermen as a result of those remarks, I do not accept that the threat was real. I do not accept that navy officers threatened to shoot the applicant in May 2012.
The Court notes that, as rightly pointed out by the Minister, the applicant has not sought to argue that the IAA was wrong in the way it characterised the applicant’s evidence. When [25] and [26] of the IAA’s reasons are read together it is clear the IAA correctly characterised the evidence given by the applicant at the SHEV interview.
Paragraphs [25] and [26] do nothing more than refer to the spontaneous response given by the applicant to questions posed. The responses were evidence given by the applicant and, to the extent that there might be a dispute as to whether the applicant understood the question being asked, this is, at best, a matter on which reasonable minds might differ.
Ground 9 fails. No jurisdictional error arises here.
Ground 10
10.The Authority acted in a way that was seriously irrational or illogical.
Particulars
a. The Applicant claimed that, in March 2012, he had made a complaint to the “[N]avy boss” concerning the conduct of Naval personnel.
b. The Applicant claimed that, in May 2012, a Tamil-speaking police officer had warned the Applicant that the Navy was planning to shoot him.
c. The Authority accepted that Naval officers had made remarks about killing or “disappearing” the people who had complained about them, one of whom was the Applicant.
d. However, the Authority reasoned that those matters did not give rise to a real risk of serious harm or a well-founded fear of persecution by reason of the context in which the remarks were made, viz, a “party atmosphere.”
e. Without more, there is no logical basis for thinking that a threat to kill a person is less real because it is made during a “party atmosphere.”
f. The inference that the threat was not “real” is therefore not one that can reasonably be drawn from such findings of fact as were made.
The applicant claimed that, in May 2012, a Tamil-speaking police officer had warned him that the Navy was planning to shoot him.
The IAA made the following findings at [25] of its reasons:
a)in March 2012, the applicant had made a complaint to the “[N]avy boss” concerning the conduct of Naval personnel (at[25]); and
b)in May 2012, the applicant was told that “the [N]avy was talking about shooting, killing, abducting or making all the people who had complained about the actions of the [N]avy disappear (D [25]).
The IAA provided reasons for these findings at [26] (which is reproduced above at paragraph 150 of this decision).
The applicant submitted that there is no logical basis for thinking that a threat to kill a person is less real because it is made during a “party atmosphere” and the finding that the threat was not “real” was unsupported by probative material.
The applicant argued that the only evidence about the circumstances in which the remark was made comes inferentially from the fact, which the IAA found, that the Tamil-speaking police officer was sufficiently concerned about the remark that he reported it to the applicant.
The Minister responded by submitting that the applicant has not articulated this ground by reference to the accepted judicial statements on legal unreasonableness, illogicality or irrationality and that the ground also seeks impermissible merits review and should be rejected.
Discerning irrationality or illogicality involves more than showing that the decision is one on which reasonable minds might differ: Gupta at [34].
A claim of irrationality or illogicality can only be made out if the applicant demonstrates that the IAA formed a view that no rational or logical decision maker could have arrived at on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [130] per Crennan and Bell JJ.
Here, the IAA took into account the circumstances in which the remarks were made (during a party) but paired that with the absence of any evidence that any action was taken against any of the fishermen to conclude that the threat was not real. In those factual circumstances, the IAA did not accept that navy officers threatened to shoot the applicant in May 2012.
As the High Court explained in Australian Broadcasting Tribunal v Bond and Others (1990) 21 ALD 1:
When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.
The Court rejects the proposition raised by the applicant that the IAA’s finding (at [26]) is unsupported by probative material or that the inference of fact upon which the IAA’s decision is based cannot reasonably be drawn from such findings of fact.
Here, the reference to a party was made by the applicant himself during the SHEV interview. The Court finds that the applicant’s own evidence is “probative material” that was before the IAA and it was open to the IAA to assess this material as part of its de novo review.
The IAA’s conclusion that the threat to the applicant was not real, made after taking into account the party atmosphere at which the alleged threat was made is, at its highest, a conclusion upon which reasonable minds might differ and does not evidence irrationality or illogicality of the requisite standard to evidence jurisdictional error.
Ground 10 does not disclose any jurisdictional error of the type alleged and, accordingly, fails.
Conclusion
For the reasons outlined above, the applicant’s grounds of review do not reveal any jurisdictional error on the part of the IAA.
Orders
The applicant’s application filed 26 September 2016, amended on 18 May 2018, is dismissed.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 17 October 2018
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