Cup18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1180

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CUP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1180

File number(s):

MLG 1502 of 2018

Judgment of:

JUDGE MANSINI

Date of judgment:

11 December 2023 

Catchwords:

MIGRATION – second application for judicial review of decision of the Administrative Appeals Tribunal – Protection (Class XA) visa – whether the Tribunal on remittal failed to have regard to relevant considerations, information or material, was legally unreasonable or acted without logically probative evidence and/or erred in interpreting or applying the law – no error of jurisdiction established – application dismissed with costs.   

Legislation:

Migration Act 1958 (Cth) ss.36, 56, 414, 424, 425, 427, 429, 476

Cases cited:

AMT15 v Minister for Immigration and Border Protection [2018] FCA 366

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

CIM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 679

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40

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

Minister for Immigration and Citizenship v Li [2013] HCA 18;

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

Minister for Immigration and Multicultural Affairs v Yusuf  (2001) 206 CLR 323

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15

SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80

SZSZW v Minister for Border Protection [2015] FCA 562

Division:

Division 2 General Federal Law

Number of paragraphs:

63

Date of last submission/s:

14 September 2023

Date of hearing:

18 September 2023

Place:

Melbourne

Counsel for the Applicant:

Mr A Krohn

Solicitor for the Applicant:

Ambi Associates

Counsel for the First Respondent:

Mr J Barrington

Solicitor for the First Respondent:

Mills Oakley

Table of Corrections

21 December 2023

In paragraph 3 the word and symbol “allowed/” has been removed to show dismissed. 

ORDERS

MLG 1502 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CUP18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	11 DECEMBER 2023

THE COURT ORDERS THAT:

1.The application as amended on 28 August 2023 be dismissed.

2.The Applicant pay the costs of the First Respondent fixed in the amount of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Mansini

IN SUMMARY

1. The Applicant is a citizen of Sri Lanka who has claimed to fear harm on return for reasons that include his political opinion as a supporter of the Tamil National Alliance.

2. The Applicant seeks judicial review of the most recent tribunal decision in relation to his protection visa application. On remittal, the tribunal again affirmed the decision of a delegate of the First Respondent which refused him a protection visa.

3. For the reasons that follow, the application is dismissed.

   CONTEXT

   Application for a protection visa

4. The Applicant arrived in Australia as an unauthorised maritime arrival on 20 June 2012.

5. On 1 November 2012, the Applicant applied for a Protection (Class XA) visa (protection visa).

6. On 23 July 2013, a delegate of the First Respondent refused to grant the Applicant the protection visa.

7. On 23 June 2014, the Refugee Review Tribunal (RRT) affirmed the delegate’s decision.

8. On 6 September 2016, another Judge of this Court determined the application for judicial review of the RRT’s decision in favour of the Applicant and it was remitted for redetermination.

9. On remittal, the Administrative Appeals Tribunal (Tribunal) convened two hearings (on 9 February 2017 and 10 January 2018) and received further written submissions (on 23 February 2017 and 30 January 2018). The Applicant was represented by his registered migration agent and assisted by an interpreter at those hearings.

10. On 7 May 2018, the Tribunal affirmed the delegate’s decision (Reasons). It is those Reasons that are subject of this judicial review application.

    Tribunal’s Reasons

11. At paragraphs [29] to [43] of its Reasons, the decision-maker outlined the Tribunal’s findings on the Applicant’s past experiences in Sri Lanka.

12. The Tribunal accepted the Applicant’s claims that he is a Tamil from Batticaloa who helped support a Tamil National Alliance (TNA) candidate and family friend, Mr Ariyanenthiran, in the lead up to the April 2010 parliamentary election. The Tribunal found that the help or support provided by the Applicant was “mainly” in the nature of driving the candidate around, using his vehicle to canvas votes, attending meetings and distributing pamphlets. Further, it was accepted that the Applicant’s father was a TNA supporter and member and had held meetings at their family home and organised the candidate’s visits to the Applicant’s family home on approximately 10 to 15 times during the campaign period to meet with TNA supporters: Reasons at [29].

13. The Tribunal also accepted that Karuna Group members used to come to the Applicant’s shop in Batticaloa and took goods without paying and used his van on occasions. Also accepted was the claim that the Applicant was questioned by the Special Task Force (STF) in a camp close to his shop, including about possible links to the Liberation Tigers of Tamil Eelam (LTTE) and his brother who was a former LTTE member and had fled Sri Lanka, for around 2 hours in December 2010. The Tribunal recounted the Applicant’s evidence given at the hearing in terms that the Applicant said that the person who interrogated him is still there; he was in hiding after 2010; and they went to his and his mother’s house to look for him. The Tribunal expressed “some doubt” that the STF person who questioned him remains in his home region but, in any event, did not accept that the Applicant was of any further adverse interest to the authorities and therefore found the chance that the person would seek to harm him on return to be “remote”. The Tribunal here considered that the Applicant’s oral evidence about the period he was purportedly in hiding was “internally inconsistent” and, on account of this and other credibility concerns (said to have been discussed above and below, but which only appear in the below), did not accept that the Applicant was in hiding after 2010 as claimed or that the STF went to his mother’s house looking for him subsequent to him being questioned in late 2010: Reasons at [30] and [31].

14. The Tribunal also found the chance the Applicant would be subject of persecution on return to Sri Lanka from the authorities or anyone else because he was questioned by the STF in 2010 to be “remote”: Reasons at [32].

15. The Tribunal expressed concerns about the Applicant’s claims to have been abducted by Karuna Group members in 2010 because of inconsistencies in his initial written claims and his oral evidence, and explained this reasoning including by reference to examples: Reasons at [33]. The Tribunal elaborated further on the reasons for its concerns about the Applicant’s claims of kidnapping and being targeted by the Karuna Group: Reasons at [34]-[39]. It was not accepted that the Applicant was in hiding as claimed and the Tribunal found that it followed that it did not accept that the Karuna Group used to come looking for him at his wife’s, his parent’s and his wife’s mother’s house during this period: Reasons at [35]. And it was not accepted that the Applicant was kidnapped by the Karuna Group (and Criminal Investigation Department or CID), temporarily detained and mistreated in late 2010 as claimed: Reasons at [37]. Nor were the Applicant’s complaints to the HRC and ICRC in Batticaloa in December 2010 found to overcome the Tribunal’s credibility concerns and were given little weight: Reasons at [39].

16. A letter included in the Department of Immigration and Citizenship (as it then was) (Department)’s file provided that the Applicant and his family had a deep-rooted connection with the TNA, and as a result of the Applicant’s ardent work in support of the TNA at the last parliamentary election in 2010 he faced life threat from unknown paramilitary group since 2010. In this respect, the Tribunal said that for the reasons it gave below it did not accept the Applicant’s claims to have been of adverse interest to the Karuna Group or other paramilitary groups in the past, or now, and therefore the letter was given little weight: Reasons at [40].

17. The Tribunal accepted that the Applicant had received threatening phone calls from people he believed to have been Karuna Group members, and threats in person: Reasons at [41].

18. The Tribunal balanced its findings at [42] and concluded that the Applicant does not face a real chance of serious harm on return on this basis and did not accept that Karuna Group members and/or the authorities had continued to show an adverse interest in him through his relatives.

19. Given those findings about the Applicant’s past experiences in Sri Lanka and profile, the Tribunal went on to consider whether the Applicant faces a well-founded fear of persecution on return for cited Convention reasons: Reasons at [43]. The following being relevant to the grounds of this review:

    (a)TNA supporter: at [44] to [50];

    (b)Brother’s former LTTE membership: at [51] to [57];

    (c)Failed asylum seeker: at [93] to [104]; and

    (d)Illegal departure: at [105] to [109].

20. Ultimately, the Tribunal concluded that the Applicant does not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that his fear of persecution is not well-founded. Accordingly, it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under the Convention and the Applicant did not satisfy the criterion at s.36(2)(a): at [110] to [111].

21. Essentially for the same reasons, the Tribunal concluded that it was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm and therefore does not satisfy the criterion at s.36(2)(aa).

    THIS APPLICATION FOR JUDICIAL REVIEW

22. At the hearing before the Court as presently constituted on 18 September 2023, the Applicant pressed the following grounds and particulars of his amended application for judicial review filed 29 August 2023:

    1.The Tribunal fell into jurisdictional error in failing to have regard to relevant considerations, information or material.

    Particulars

    a.The Tribunal did not have regard to all the material before it, relating to the risk of harm to persons in detention or prison in Sri Lanka.

    b.The Tribunal failed to consider all the material submitted. These materials include:

    I.Relevant critique in relation to the recent Country Information Report of Sri Lanka.

    II.Material relating to the culture of abuse of human rights in Sri Lanka, including the treatment of persons in detention or prison under the control of the Sri Lankan authorities or allied groups.

    2.The Tribunal fell into jurisdictional error in that it was legally unreasonable or acted without logically probative evidence.

    Particulars

    a.Further or in the alternative to Particular (a) to Ground 1, The Tribunal was unreasonable in its conclusions about the risk of harm to the Applicant in detention or prison in Sri Lanka if he returns there.

    b.The Tribunal was unreasonable in not finding that when the applicant had suffered extortion, this was for reason of his membership of the particular social group of wealthy persons.

    e.The Tribunal was unreasonable to reject the Applicant's claims to have been abducted, tortured and injured by the Karuna Group or allied forces, to have been in hiding and to have been searched for by the Karuna Group or allied forces. (Decision record, Court Book ("CB") [31 ]-[37]).

    f.The Tribunal was unreasonable to have attached "little weight" to the letter of the Member of Parliament whose election campaign for the Tamil National Alliance ("TNA") it accepted that the Applicant had assisted by canvassing and other involvement. (CB 83; CB 371, [29]; CB 373-374, [40]).

    g.Further or in the alternative to particular (f) to this Ground, the Tribunal was unreasonable to have attached "little weight" to the letter of the member of Parliament, when it had not made inquiries about the letter by the Member of Parliament in support of the Applicant, and specifically about what was "the ardent work" the Applicant had done for the TNA and what was "the life threat" he feared or suffered as a result, when this was "an obvious inquiry about a critical fact, the existence of which is easily ascertained." (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (23 September 2009), [25).) It was open to the Tribunal to have made those inquiries simply and directly of the author of the letter, whose official contact details as a Member of Parliament were on the letterhead. (CB 83; CB 371, [29]; CB 373-374, [40]).

    h.It was unreasonable for the Tribunal to find that any future work by the Applicant for the TNA would be limited to voting at elections, when the Tribunal had already accepted a much more active and visible involvement by the Applicant in campaigning and in personal contact with the TNA candidate. (CB 83; CB 371, [29]; CB 373-374, [40]).

    4.The Tribunal fell into jurisdictional error in that it erred in interpreting or applying the law.

    Particulars

    Further or in the alternative to particulars (f) and (g) to Ground 2, the Tribunal erred in not using its power to make inquiries or to get evidence under sections 56, 414, 424, 425, 427, 429 of the Migration Act 1958 in order to make inquiries about the letter by the Member of Parliament in support of the Applicant, and specifically about what was "the ardent work" the Applicant had done for the TNA and what was "the life threat" he feared or suffered as a result, when this was "an obvious inquiry about a critical fact, the existence of which is easily ascertained." (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (23 September 2009), [25]; CB 83; CB 371, [29]; CB 373-374, [40]).

    (original numbering and lettering of paragraphs retained, original content no longer pressed omitted)

    Statutory framework

23. A “privative clause decision” as defined at s.474 of the Migration Act 1958 (Cth) (Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76].

24. The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175.

25. The Applicant lodged his application for a protection visa on 1 November 2012, at which time the applicable legislation was the Migration Act 1958 (Cth) Act No. 62, (commenced 20 September 2012) which provided, at s.36(2)(a):

    (2)       A criterion for a protection visa is that the applicant for the visa is:

    (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

26. Under that provision, consideration of whether an applicant enlivened Australia’s protection obligations was undertaken with reference to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (hereinafter collectively referred to as the Convention).

27. The term “refugee” was defined by Article 1A(2) of the Convention as a person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

28. Additional (or alternative) criterion for a protection visa was provided at s.36(2)(aa):

    (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

    GROUND 1

    Respective contentions

29. By the first amended ground of review, the Applicant contended that the Tribunal failed to consider relevant material before it relating to the risk of harm to persons in detention or prison in Sri Lanka. More specifically, this ground was argued as a failure to consider a material fact squarely arising on the material before it relating to the risk of harm the Applicant faced in detention or prison simply as a result of being a prisoner or detainee. That material fact was said to be distinct from the risk arising from the Applicant’s political profile which he contended was erroneously the focus of the Tribunal’s Reasons (with reference, for example, to paragraphs [108] and [109] of the Reasons). Further, that the Tribunal failed to consider the limitations (tensions) within the Department of Foreign Affairs and Trade (DFAT) Country Information Report Sri Lanka (24 January 2017) (DFAT Report) on which it placed heavy reliance.

30. The First Respondent contended that no inference should be drawn that the Tribunal failed to consider the Applicant’s cited country information or the Applicant’s claim to fear harm in prison or detention more generally and pointed to various references in the Tribunal’s Reasons. The First Respondent accepted there was a finding of a possibility of no more than a short period of detention on return because of the Applicant’s Immigrants and Emigrants Act (I&E Act) breaches. Otherwise there was no finding of a real risk that the Applicant would be detained on return because there was no finding of a particular adverse profile with anyone in Sri Lanka. And in any event, the Tribunal was not required to engage in a line-by-line refutation of the evidence or to deal with country information on torture generally as the Applicant never made any argument or submission about it.

    Applicable principles

1. It is well established that the Tribunal must consider each necessary and relevant consideration and integer of the claim, and must consider each material question of fact squarely raised by the material before the Authority: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 per Mason J at [19]; SZSZW v Minister for Border Protection [2015] FCA 562 per Perry J at [13]-[18]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] (Gummow and Callinan JJ); see also SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 at [29] per Madgwick and Conti JJ; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58].

2. The scope of the obligation to actively consider a particular claim, integer or evidence will vary according to the circumstances of the particular case: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021) at [26], [77]-[78], [108]. The Tribunal is not obliged to refer to every aspect of the evidence that was before it. However, an omission by the Tribunal to address in its reasons a question of finding on a material issue may support an inference that the Authority had not considered it to be material, and so indicate a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5] (Gleeson CJ) and [69], [75], [82]-[84] (McHugh, Gummow and Hayne JJ).

   Resolution of Ground 1

3. In articulating his claims over some years, the Applicant explained the reasons why he left Sri Lanka by reference to alleged threats, detention, torture and abduction that he had experienced in the past - some of which the Tribunal accepted as having occurred (as summarised above).

4. In all respects the Applicant’s claims to fear harm were related to the possible event of his return to Sri Lanka and his particular attributes ie. his status as a Tamil and failed asylum seeker having spent a long time seeking protection in Australia, his illegal departure from Sri Lanka and his imputed political profile. Of the various materials that the Court was taken to, I did not discern that the Applicant had “squarely” claimed that he was entitled to protection under the Act because of a “general” fear of harm “simply as a person in detention”.

5. To the extent a claim to fear harm simply as a person in detention may be said to have arisen from the material as a claim by which the Applicant was owed protection, as summarised above the Tribunal accepted certain claims which the Applicant contended would elevate his risk of harm on return – for example, that he had performed an active role in supporting the TNC (and, other than a notation of the Applicant’s own evidence that he was not politically active after the elections, there being no finding on the evidence that the Applicant would change or abandon those political orientations or beliefs). The Tribunal also noted without dismissing the Applicant’s statement at the hearing that he was fearful of the murders and treatment that occur in prison.

6. By reference to the various categories of claim or characteristics, the Tribunal considered the risk of harm to the Applicant including that the Applicant would be detained or imprisoned on return to Sri Lanka. That consideration included an assessment of risk arising immediately on his return and following return to his home area. As disclosed by the reasoning in relation to the Applicant’s fear associated with his illegal departure, for example:

   (a)at [106], where the Tribunal considered there to be a risk of a short period of detention for questioning by the authorities at the airport immediately in processing on arrival, which treatment was considered not to amount to persecution under the Act and it found would be applied generally to all returnees who would be treated in the same way rather than in a discriminatory way for a refugee reason;

   (b)at [108], where the Tribunal expressly rejected that the Applicant faces a real chance of persecution for any reason during any short-term period of being detained with regard to its findings that he was not of ongoing adverse interest to anyone; and

   (c)at [109], where the Tribunal considered the treatment the Applicant would face for having departed Sri Lanka unlawfully - whether at the airport on arrival, on remand awaiting a bail hearing, when later dealt with by the courts or when he returned to his home area – would not amount to persecution involving serious harm or give rise to a real chance of such harm even when assessed cumulatively with what is accepted of the Applicant’s personal profile and circumstances in Sri Lanka.

7. It is to be recalled that the Tribunal’s obligation to give reasons extended to findings of fact which were found by the Tribunal to be material. There is ample authority that non-reference to a particular matter does not necessitate a conclusion that it was not considered. In circumstances where the Tribunal expressly considered the Applicant’s claimed characteristics that would give rise to a risk of harm and the risk applicable to all returnees, but assessed the resultant risk of any harm occasioned by the Sri Lankan authorities as remote or non-existent, the possibility of what would otherwise generally happen to the Applicant if he were detained in prison on return was an immaterial finding of fact and therefore not necessary to address in the Tribunal’s Reasons.  

8. When read as a whole, the Tribunal’s Reasons plainly reveal that it had regard to the various country information before it in making its findings about the risk of harm to the Applicant. At [99] to [102], the Tribunal specifically engaged with points of disagreement about the country information that were raised on behalf of the Applicant and the various country information presented by the Applicant. At [103], in the context of the consideration of his status as a failed asylum seeker, the Tribunal gave reasons why the Applicant’s country information was not supported by findings of fact as to the Applicant’s particular circumstances. The Tribunal did not expressly cite all of the country information before it (or all passages of it) in considering other claimed bases for fear of harm including torture and detention, such as the Applicant’s illegal departure. However, the Tribunal was not required to cite every part of the country information that may have borne some relevance to its consideration and the references to the DFAT Report and Applicant’s country information provide a strong indication that the Tribunal did not fail to consider that which was before it.

9. In relation to the internal inconsistencies that the Applicant contended were apparent on the face of the DFAT Report and with which the Tribunal was required to grapple, it would appear that the highlighted sections of the report distinguished between torture and torture and mistreatment of returnees: see, for example at 4.13, 4.18, 4.19, 4.21 and 4.22 of the DFAT Report. To the extent of any differences in DFAT’s assessment of risk, those were points of distinction rather than true inconsistencies. General observations in the DFAT Report about the conduct of police were moderated by the conclusion of such risk decreasing or reducing and the fact of few reports and associated difficulty in determination of prevalence of such reports. The specific assessment about the risk of harm including torture and other mistreatment as a returnee in the DFAT Report was similarly expressed as rarely reported and of reducing instance. In any event it may be accepted that, beyond a brief period on account of his I&E Act contraventions, there was no finding of a real risk that the Applicant would be detained on return because there was no finding of a particular adverse profile.

10. As this ground was plead and on what is before the Court, there is insufficient basis to sustain an inference that the Applicant’s claim or the country information relevant to the claim was not considered.

11. For the above reasons, I am not persuaded that the first ground relied on by the Applicant is able to succeed.

    GROUND 4

    Respective contentions

12. By what was referred to as the fourth amended ground of review, the Applicant contended that the Tribunal erred when it did not exercise its power to make inquiries or get evidence from the writer of a letter in support of the Applicant pursuant to ss.56, 414, 424, 425, 427 and 429 of the Act. Specifically, it was contended that the Tribunal should reasonably have got information from the candidate or Member of Parliament (MP) of the TNC about the “ardent work” of the Applicant and what was the “life threat” he feared or suffered as a result. The contended consequence was a material failure to obtain information which may have affected the Tribunal’s findings of fact in relation to the Applicant’s level of work and commitment for the TNA, his being abducted, his time in hiding and then being searched for by paramilitary forces after he left Sri Lanka.

13. The First Respondent characterised the letter in question as a “testimonial” and this ground as an attempt to address shortcomings in the Applicant’s own evidence. It asked the Court to find that there was no unreasonable failure to get information from the MP and it was not an obvious inquiry. The First Respondent said there was no reason for the Tribunal to think that the MP had first-hand knowledge of the Applicant’s claimed life threats and no reason to think the MP could make any material addition to the disposition of the review.

    Applicable principles

14. It was accepted that each case will turn on its own facts.

15. The Applicant placed heavy reliance on the decision in AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 (AMT15) which also involved a letter by a Sri Lankan member of Parliament, on letterhead. That case was said to be authority for the proposition that the Tribunal erred by failing to make an obvious inquiry about a critical fact by not using its power under s.424 of the Act to get more information about the letter from the MP.

16. The First Respondent referred to the decision in CIM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 679 which was a case about a Part 7AA decision of the Immigration Assessment Authority. The cited passage was:

    Such inquiry as the receipt of that information might require was not obvious; and the matters to which such an inquiry might have been directed (namely, whether the letters should serve as corroborative of the appellant’s own narrative) were not sufficiently critical to the disposition of the Fast Track Review (although, no doubt, they may have assisted the appellant).

    Resolution of Ground 4

17. Of the various legislative provisions cited in the Applicant’s submissions, it may be accepted that at least s.424 of the Act relevantly confers a broad power on the Tribunal to get any information that it considers relevant including to invite a person to give information.

18. The document in question was the MP’s letter which was translated as having the subject line “Life Threat to Live in Sri Lanka” and included statements that: the Applicant and his whole family have a deep-rooted affiliation with the TNA political party; as a result of the ardent support and work with the political party in the last Parliamentary election held in 2010, the Applicant faced life threat from an unknown paramilitary group since 2010 and while he was in Sri Lanka; and he had to leave the country in the recent past.

19. By its Reasons, the Tribunal considered the MP’s letter but decided to accord it little weight and gave reasons, at [40] and [44]. To the extent of the little weight accorded, by the reasons at [40] it is apparent that the Tribunal considered that the letter did not support the Applicant’s kidnapping claim and gave primacy to other evidence before it that caused it not to accept the Applicant’s claims to have been of adverse interest to the Karuna Group or other paramilitary groups in the past or at the time of the Reasons. To the extent that the Tribunal expressly gave some weight to the letter, by the reasons at [44] it did so in making positive findings about the Applicant’s support of and involvement with the TNA. Nothing in the Reasons suggested that the Tribunal challenged or questioned the integrity of the letter. It follows that the MP’s letter in the present case is distinguishable from that of AMT15.

20. There is force to the argument that the onus here rested with the Applicant who had voluntarily and unilaterally obtained a letter and translation from the MP. It was a matter for the Applicant to request the MP to include whatever information was considered necessary.

21. There was no obligation on the Tribunal to exercise its power under s.424 to get information from the MP and, in all of the circumstances, it was not unreasonable that the Tribunal did not do so.

22. For the above reasons, this fourth ground does not succeed.

    GROUND 2

    Respective contentions

23. By the second amended ground of review, the Applicant asked the Court to find that the Tribunal’s decision was legally unreasonable or that it acted without logically probative evidence. In summary, particularised by reference to the following points:

    (a)Further, or in the alternative to Ground 1, in relation to its conclusions about the risk of harm to the Applicant in detention or prison in Sri Lanka if he returns there (originally particular (a));

    (b)In its rejection of the Applicant’s claims to have been abducted, tortured and injured by the Karuna Group or allied forces, to have been in hiding and to have been searched for by the Karuna Group or allied forces (originally particular (e));

    (c)In attaching little weight to the MP’s letter and, further or in the alternative, in its decision not to exercise its power under s.424 to made inquiries or requested information of the MP about the “ardent work” and “life threats” (originally particulars (f) and (g));

    (d)In finding that any future work by the Applicant for the TNA would be limited to voting at elections when it had already accepted a much more active and visible involvement and personal contact (originally particular (h)).

24. The First Respondent argued that the particulars, in some respects, invited the Court to engage in an impermissible merits review and otherwise did not disclose any unreasonableness but rather the Tribunal was entitled to find as it did, for the reasons that it did, on each issue.

    Applicable principles

25. It is uncontroversial that a decision maker is required to act reasonably, in a legal sense: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16.

26. In support of his amended Ground 2, the Applicant relied on the authority in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 for the proposition that the Tribunal must not make findings so unreasonable that no reasonable decision maker could so have acted. He also sought to rely on Minister for Immigration and Citizenship v Li [2013] HCA 18; 297 ALR 225 (Li) for the proposition that the Tribunal must act reasonably in the exercise of its discretion including its power to get further information.

27. Acknowledging the caution of the High Court against use of labels such as “proper, genuine and realistic consideration” (Plaintiff M1/2021 at [26]), it may be accepted that legal unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification” (Li at [68] and [76] per Hayne, Kiefel and Bell JJ). It may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn” (see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [43]; citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [135]). However, the test has been described as “necessarily stringent” (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] per Kiefel CJ). It is not met where reasonable minds could have come to different conclusions (SZMDS at [130]-[131] per Crennan and Bell JJ).

    Resolution of Ground 2

28. Particular (a) was essentially a repetition of the argument under Ground 1, sought to be characterised as legal unreasonableness. As outlined in relation to Ground 1, the Tribunal considered the risk of harm to the Applicant in detention or prison on return to Sri Lanka to the extent that this was clearly articulated as a claim before it and had appropriate regard to the various country information before it. Even if a more general risk simply as a person in prison or detention arose from the material, it was open to the Tribunal to conclude as it did and there is no merit to this ground as particularised at (a).

29. In respect of the findings subject of original particular (e), the Applicant argued that the foundation of this set of claims was his claim to have been kidnapped or abducted and the Tribunal therefore erroneously approached its consideration on the basis of whether he was truly in hiding and being searched for in the period that followed. However the Tribunal explained its reasons for rejection of the kidnapping claim, by reference to the Applicant’s own evidence and in parts inconsistent evidence of the movements of his parents and his wife, which it found cast doubt on the Applicant’s account of being looked for in the past or that the Karuna Group continued to do so: see, in particular, at [36]-[38] of the Reasons. In my view, the Tribunal gave logically probative reasons for its rejection of the Applicant’s kidnapping or abduction and torture claims.

30. Particulars (f) and (g) were essentially a repetition of the argument under Ground 4, sought to be characterised as legal unreasonableness. The weight to be accorded to the evidence in the form of the MP’s letter was entirely a matter for the Tribunal. It was open for the Tribunal to conclude that little weight be accorded to the letter (to the extent that it did, as summarised above) and its decision was supported by logical reasoning. Further, as explained at Ground 4, the Tribunal was not obliged to request information from the MP and in the circumstances of this particular case it was not unreasonable that it did not do so.

31. In respect of particular (h), the Applicant contended it was clearly unreasonable for the Tribunal to find that any future work by the Applicant for the TNA would be limited to voting at elections given that the Tribunal had already accepted that the Applicant had a much more active and visible involvement in campaigning and personal contact with the TNA candidate. I accept the opposing submission that this was essentially a mischaracterisation of the Tribunal’s Reasons wherein it was determined that the Applicant and his family had supported the TNA but that the Applicant had a limited and low-level support to the TNA, and ultimately that he would not face a real risk of harm on account of providing such level of support: see [44] and [49] of the Reasons. That is an assessment the Tribunal was entitled to make.

32. For the above reasons, the particulars to the second ground as pressed do not establish that the Tribunal was legally unreasonable or acted without logical or probative basis in its Reasons. This second ground does not succeed.

    CONCLUSION

33. For the above reasons, the application for review is dismissed with costs.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Associate:

Dated:       11 December 2023