Dep17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 610
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DEP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 610
File number(s): SYG 2237 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 5 August 2022 Catchwords: MIGRATION – Immigration Assessment Authority – alleged failure to undertake active intellectual process – common sense document analysis
PRACTICE AND PROCEDURE – importance of precision in submissions
Legislation: Migration Act 1958 (Cth) ss 5H, 36, 473CB, 476 Cases cited: AGA16 v Minister for Immigration and Border Protection [2018] FCA 628
Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 397 ALR 1
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395 ALR 403
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51
Tickner v Chapman (1995) 57 FCR 451
WZAQU v Minister for Immigration and Citizenship (2013) 233 FCR 534
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 13 July 2022 Place: Sydney Counsel for the Applicant: Mr G Foster Solicitor for the Applicant: Sentil Solicitor Solicitor for the Respondents: Mills Oakley ORDERS
SYG 2237 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEP17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
5 AUGUST 2022
THE COURT ORDERS THAT:
1.The application, as amended on 1 July 2022, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
By an application filed in this Court on 17 July 2017, the applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act) of a decision made by the Immigration Assessment Authority (Authority) on 12 June 2017 affirming a decision of a delegate of the first respondent (delegate) not to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (SHEV).
BACKGROUND
The applicant is a male national of Sri Lanka who arrived in Australia on 26 August 2012 as an unauthorised maritime arrival (Court Book (CB) 109.4) and participated in an arrival interview on 19 January 2013 (CB 1-18).
On 3 March 2016, the applicant applied for a SHEV (CB 19-72). In a Statutory Declaration accompanying his application (CB 60-65), the applicant claimed he was a Christian Tamil from the Jaffna District in the Northern Province of Sri Lanka and was frequently harassed by the Sri Lankan armed forces during the civil war. He claimed he was targeted by the Sri Lankan Army (SLA) and on one occasion “sought refuge” at a Human Rights Commission (HRC) office in Jaffna. The applicant provided supporting documentary evidence which included:
(a)a variety of documents which had not been translated (namely those at CB Index 2(d), 2(e), and 2(f)); and
(b)a letter from the Jaffna regional coordinator of the HRC (the HRC letter) (CB 66). The HRC letter was expressed as a reference/testimonial of sorts as to the circumstances in which the applicant had come to seek refuge at the HRC. It was written in English and addressed not to the applicant, but “To whom it may concern”.
On 23 August 2016, the applicant attended an interview before the delegate (SHEV interview) (CB 99.8), at which he claimed that, just prior to his departure, he received a message from an unknown person telling him that he was required to attend a government office for questioning (CB 112.7).
The applicant also provided a letter dated 27 September 2012 purportedly from the SLA (SLA letter) (CB 110.6). A photocopy of the SLA letter was placed on the Department’s file.
On 21 October 2016, the delegate made a decision refusing to grant the applicant a SHEV (CB 106-121). The delegate accepted the applicant had experienced harassment but was not satisfied he faced any ongoing adverse interest from the Sri Lankan authorities following his departure.
Relevant to this review among the delegate’s findings are those pertaining to the SLA letter. In considering the SLA letter the delegate:
(a)recounted the matters set out at [4] above;
(b)referred to the applicant providing the delegate with a copy of a letter written in English, dated 27 September 2012 and purporting to be from the SLA “calling him to come into (sic) be questioned” (CB 112.9);
(c)expressed concerns about the genuineness of the SLA letter in light of the applicant’s explanation to the delegate (CB 113.1), being the confused nature of the explanation regarding from whom the letter was sent and why he was wanted for questioning, namely that it was the HRC despite the letter bearing an SLA insignia (CB 113.2);
(d)made reference to country information which indicated the breadth and prevalence of document fraud in Sri Lanka (CB 113.2); and
(e)expressed himself as being struck by the fact that the SLA letter was written in English and not in Sinhalese or Tamil (CB 113.3).
Authority’s decision
On 28 October 2016, the delegate’s decision was referred to the Authority (CB 122-123).
On 12 June 2017, the Authority affirmed the decision not to grant the applicant the SHEV (CB 132-146).
The Authority had regard to the material referred under s 473CB of the Act and noted the applicant had included an untranslated Tamil document with his SHEV application. Despite the fact the Authority records the delegate as having raised the need for English translation of documents at the SHEV interview, no such translation was provided. As such, the Authority found it was not able to consider the document (CB 133 at [3]).
The Authority was satisfied there were exceptional circumstances to justify considering new information in the form of a Department of Foreign Affairs and Trade (DFAT) country information report on Sri Lanka dated 24 January 2017 (CB 133 at [4]).
The Authority accepted the applicant’s identity was as claimed, and that he was a Christian Tamil from the Jaffna District in the Northern Province of Sri Lanka (CB 135 at [8]) and a national of Sri Lanka (CB 135 at [9]). The Authority accepted that the applicant’s account of his younger years and displacement to a refugee camp in Tamil Nadu in India was plausible and consistent with independent country information. It also noted that no claim had been raised by the applicant about his displacement in India, and that the applicant had confirmed at the arrival interview and in his SHEV application that his parents and three siblings continued to reside in Tamil Nadu while he returned to Sri Lanka in 2004 (CB 135 at [10]).
The Authority accepted the applicant had worked as a fisherman and had experienced harassment (CB 135 at [11]). The Authority accepted that the applicant was beaten in 2006 on one occasion. The Authority also accepted the applicant’s claim that he had been investigated, harassed and questioned by the Sri Lankan military and sought protection from the HRC (CB 135-136 at [12]).
The Authority considered the applicant’s claims to have been investigated and subjected to occasional searches by the SLA after the war ended, but there was no material about the circumstances of those alleged investigations and searches and it noted the applicant continued to live and work in his home town up until close to his departure (although he claimed he was afraid of being targeted, abducted and mistreated and maintained a low profile). The Authority also noted the applicant had said he was told the SLA came looking for him at his home on two or three occasions.
The Authority observed the HRC letter referred to authorities searching for the applicant in 2010 and 2011 but found it was unclear whether this information was relayed by the applicant or reported from an independent source. The Authority found there was no other information before it to indicate the purpose or circumstances of these visits and whether any further action resulted. The Authority noted the applicant had been issued a fishing pass by the Sri Lankan Navy on 25 January 2012 and he continued to live and work in the area, which indicated that he was not viewed as a person of adverse interest by the authorities (CB 136 at [14]).
The Authority accepted the applicant’s travel to Vanni may have “triggered the interest” of the SLA in 2006, but was not satisfied that the authorities held any ongoing view that the applicant was a member or affiliate of the Liberation Tigers of Tamil Eelam (LTTE) (CB 136 at [15]).
The Authority found the applicant’s claim that the authorities had come looking for him was “an overstatement” of the checks undertaken of Tamils in the area more generally, given that he did not hold a profile for involvement with the LTTE, a number of years had passed since the Vanni incident without the applicant experiencing problems with the authorities and he was issued with a fishing pass in 2012 without apparent impediment (CB 136-137 at [16]).
The Authority noted the HRC letter referred to authorities searching for the applicant on specified dates but found the author of the letter did not say whether this was within their personal knowledge. Further, the dates of the searches occurred at irregular and prolonged intervals. It also found the applicant’s application for and receipt of a fishing pass in this period indicated he was in contact with the authorities and if they were looking to question him about suspected LTTE involvement then they had the opportunity to do so. The Authority was not satisfied the HRC letter corroborated the applicant’s claim that the authorities continued to suspect him of LTTE involvement and targeted him on this basis (CB 136-137 at [16]).
The Authority made the following finding at [17] which, by reason of being the finding sought to be impugned on review, will be set out in full, rather than summarised:
The applicant also claimed that in October 2012, a message was sent to his home requiring his attendance for an inquiry. Provided by the applicant at visa interview and included with the referred materials was a document that appeared to be related to this request. It is not clear on the face of the document who is the author and some of the writing is illegible. However, the delegate indicated in their reasons for decision that the letter bore a Sri Lankan army insignia. I share the delegate’s concerns, expressed to the applicant during the visa interview, that the letter is written in English and does not, on its face, appear to be from the HRC. I found the applicant’s claim that the message came from the staff at the HRC at Jaffna to be inconsistent with the document presented and his discussion about how and why he would be called by them for an inquiry, to be unconvincing. I note that the delegate indicates that no document verification has been undertaken on the letter. Notwithstanding, given the unconvincing nature of the applicant’s testimony, that the letter is written in English and bearing a Sri Lankan army insignia, and the late stage at which the document was provided to the delegate, I consider the letter has been provided to embellish the applicant’s claims. Accordingly, I am not satisfied the applicant received a letter in October 2012 requiring him to attend for an inquiry.
To the extent the applicant also claimed that the SLA came looking for him after he departed Sri Lanka (separate to the claim that they had come looking for him at the end of the war), the Authority found there was no information about the circumstances, timing or purpose of these alleged post-departure visits, and the applicant had not claimed that any of his family members (who remained living in his home town) had been harassed or threatened by the authorities. For these reasons, the Authority was not satisfied the SLA were looking for the applicant following his departure such as to indicate he was a security concern to them which would give rise to a real chance of harm on his return (CB 137 at [18]).
On the basis of its assessment of country information, the Authority was not satisfied the applicant faced a real chance of harm arising from his Tamil ethnicity or Christian religion (CB 137-138 at [19]-[20]).
The Authority was satisfied that on his return to Sri Lanka the applicant would be able to earn an income which would enable him to subsist given his demonstrated capacity to adapt his occupation in the past from fisherman to fishmonger, and also given the changed political landscape (CB 138 at [21]). The Authority noted the applicant was (at that time) 36 years old and found there was no material to indicate he would be at risk of harm or suffered any particular vulnerability due to his age (CB 138 at [22]).
The Authority accepted the applicant departed Sri Lanka illegally and would be identified on his return as a failed asylum seeker but noted independent country information that indicated the Sri Lankan Constitution entitled any Sri Lankan citizen to the freedom to return (CB 138 at [24]) and the usual penalty for departing illegally was a fine. Despite his accepted profile, the Authority was not satisfied the applicant would be targeted or subjected to processes on re-entry to Sri Lanka that differed from the usual procedures for returnees (CB 138-139 at [25]). It noted the 2017 DFAT report indicated that returnees were processed in accordance with standard procedures regardless of ethnicity and were not mistreated (CB 139 at [26]).
The Authority accepted the applicant departed illegally as a passenger on a boat and found that if he pleaded guilty to charges in this regard, he would be fined and then be free to go. The Authority was not satisfied that such a financial penalty in this case amounted to serious harm (CB 139 at [27]-[28]). It also noted that most returnees who pleaded guilty were immediately granted bail and released on the basis of a surety without conditions (CB 139 at [29]). It found there was no evidence that the procedures and penalties under the [Immigrants] and Emigrants Act 1949 (I&E Act) were discriminatory and was not satisfied that detention arrangements for the purpose of being charged under the I&E Act or the imposition of penalties on a guilty plea were applied discriminatorily (CB 139 at [30]). On the basis of DFAT’s assessment that the risk of torture and mistreatment of returnees was low and continued to reduce, the Authority was not satisfied the applicant faced a real chance of serious harm on the basis of being a returned asylum seeker and/or departing illegally (CB 139 at [31]).
The Authority was not satisfied the applicant faced a real chance of serious harm for any of the reasons he advanced (CB 139 at [32]), or that he met the definition of refugee in s 5H(1) or the refugee criterion in s 36(2)(a) of the Act (CB 139 at [33]).
The Authority found the applicant had not made specific claims for complementary protection (separately from those he advanced in relation to the refugee criterion) (CB 140 at [36]). It referred to its previous findings that the applicant did not face a real chance of serious harm from the authorities for the reasons he advanced and found that as “real chance” and “real risk” involved the same standard it was also satisfied that he did not face a real risk of significant harm on these bases (CB 140 at [37]). The Authority found there was no suggestion the applicant faced the death penalty for any reason (CB 140 at [38]). Having regard to his accepted profile and the manner of his departure, the Authority found the independent country information indicated the applicant would only be detained for a short time if he pleaded guilty and faced a fine (CB 140 at [39]).
The Authority found there was nothing to indicate the applicant had any particular vulnerability which would exacerbate even a short time in detention and found on the basis of independent country information that the amount of any fine was discretionary and could be paid in instalments (CB 140 at [40]). For these reasons, the Authority was not satisfied the applicant faced a real risk of significant harm, including as a result of conditions he might face on his return as an illegal departee (CB 141 at [41]), or that he met the criterion in s 36(2)(aa) of the Act (CB 141 at [42]).
Application to this Court
These proceedings were commenced by an application to show cause filed on 17 July 2017 (originating application), at which time the applicant was unrepresented. The originating application contained five grounds of review.
The matter was listed for a first Court date before a Registrar of the Court on 12 October 2017. The applicant appeared in person with the assistance of an interpreter in the Tamil language. The Registrar made orders by consent which provided, inter alia, for the applicant to file and serve any amended application by 1 March 2018, which did not occur. The matter was listed for a callover on a date to be advised administratively.
The applicant appeared at a callover before a Registrar of the Court on 16 March 2022 conducted by telephone, at which the matter was set down for hearing on 10 June 2022.
On 7 May 2022, the applicant emailed the Registry attaching a letter which sought a short adjournment of the hearing on the basis that he had met with a solicitor whom he named, and who had agreed to appear for the applicant to instruct a particular Counsel, subject to those legal representatives reviewing the papers in his case. The first respondent’s solicitor consented to the adjournment request.
On 10 May 2022 the Court informed the parties by email that the hearing had been re-listed to 13 July 2022 and provided them with a sealed copy of Orders made by me on that day which required the applicant to file and serve any Notice of Address for Service, amended application, Affidavit evidence and a written outline of submissions and list of authorities at least 21 days before the final hearing. After the making of those orders the following events occurred:
(a)the applicant’s solicitor (being the same solicitor referred to at [31] above) did not file a Notice of Address for Service as required by the orders made on 10 May 2022 in time, with such Notice instead being lodged for filing the day prior to the hearing;
(b)on 12 June 2022 a written submission (of seven sentences) and a list of authorities was filed for the applicant (which properly disclosed the involvement of the practitioners in the footer); and
(c)a proposed amended application was filed on 1 July 2022, which appeared to be outside of the grant of leave and without explanation.
Although noting that no explanation was provided for what appeared to be a late filing of the amended application, a document which was marked “MFI-1” at the hearing was provided to the Court which indicated that there had been a snafu in the Court’s Registry and that the amended application had in fact been lodged for filing earlier, and most importantly, within time. In any event and as the first respondent did not oppose leave being granted for the applicant to rely upon the proposed amended application, I granted that leave at the hearing.
The further amended application wholly abandons the 5 grounds of the originating application and raises a sole ground of review as follows (errors in original):
1.The IAA erred when it was not satisfied the applicant received a letter in October 2012 requiring him to attend for an inquiry.
Particulars
i.[17] [CB137]
ii.The Applicant claimed inter alia he experienced problems with the authorities in going out to fish following the end of the war, the army came in search of him [5][CB134] a few times 2006-2012 [CB60]; and he had sought refuge with the HRCO once during the war fearing the authorities would harm as the authorities would harm as the authorities were targeting Tamil males like him [CB61]
iii.The IAA accepted
a. the applicant’s travels to the Vanni may have triggered may have triggered the interests of the army in 2006 and prompted an investigation of him at that time [15] [CB136];
b. the Applicant was subject to harassment and checks by the authorities in the years following the end of the war [15][CB136];
c. the letter bore a Sri Lankan army insignia;
iv.While the IAA was unsure whether the Applicant claimed the army had come looking for him two or three times since his departure [18][CB137], the IAA found there is no information to indicate the circumstances, timing or purpose of the visits, or that members of his family had been harassed or threatened [18] [CB137];
v.Notwithstanding the matters accepted by the IAA at iiii above, the IAA considered the letter had been provided to embellish the applicant’s claims and so was not satisfied the applicant received a letter in October requiring him to attend for an inquiry [17][CB137], the inference being that the letter was somehow a false document, when there was no evidence it was not genuine;
vi.The finding was unreasonable since the letter on its face was in accordance with the Applicant’s claims and the IAA did not proffer any explanation as to how the document came into existence so as to not be genuine.
vii.The IAA, in finding the letter had been provided to embellish the applicant’s claims, did not exercise intellectual process;
viii.The letter was material to the Applicant’s claims.
The Minister filed written submissions and each of the applicant’s Counsel and Minister’s solicitor made oral submissions at the hearing on 13 July 2022.
While the sole remaining ground is lengthy, the error alleged by it is in short compass. As noted above, the applicant’s written submissions are brief, such that they can be set out in full (error in original):
1.The Applicant does not press Grounds 1-5;
2.The Applicant repeats the Ground 6;
3.The letter showed an insignia from the Sri Lankan army, which on its face demonstrated its authenticity;
4.The letter was consistent with the Applicant’s claims of being in fear of the authorities;
5.The IAA failed to provide any other explanation for the letter; No document verification was undertaken [CB137];
6.The IAA’s non satisfaction was without any foundation and exposed the IAA’s failure to properly consider the material before it or to exercise active intellectual process,
7.Accordingly the IAA committed jurisdictional error.
At hearing the Court Book which was filed in 2017 was marked as Exhibit “1R” and a Supplementary Court Book (SCB) filed in the week of the hearing, was marked Exhibit “2R”. The SCB contains a single document, being the SLA letter. The copy of the SLA letter which is reproduced in the SCB is nigh on illegible having apparently been copied so many times as to become faint almost beyond recognition.
When asked whether the Minister’s solicitor had a more legible copy, the Court was told that:[1]
My understanding is that the applicant brought the original to the delegate and the delegate took that copy and that’s all we have on file.
[1] Transcript (T) 7:46-47
This seemed at odds with what is recorded in the delegate’s decision where the delegate said (at CB 112 to 113):
Despite the copy of the letter that the applicant provided being difficult to read due to the quality of the copy, I have some concerns about the genuineness of this document in light of his own explanation.
When asked about this inconsistent explanation for the poor copy of the SLA letter provided to the Court, the solicitor for the Minister stated that he “misspoke”:[2]
Perhaps when I assumed the applicant brought an original copy, but I think the difficulty is that the copy the court now has is of even worse quality than what was before the delegate, given we can no longer make out the insignia.
[2] T 12:34-37
The Court expects precision, and not assumption or supposition, in respect to statements made from the Bar table, particular about the quality and provenance of a document which is critical to the determination of the judicial review application.
For the purposes of that determination I asked the solicitor for the Minister whether the Minister was prepared to stipulate to the Court inferring that the SLA Letter bore the SLA insignia as recorded in the decision of each of the delegate and the Authority. The reason this concession was sought is because the quality of the copy contained in the SCB is so poor that the page seems to be blank, other than for the inclusion of one faintly typed paragraph. It seems from the Authority’s reasons at [17] (see [19] above) that the Authority also had to take the delegate’s word about the presence of the SLA insignia on the version of the SLA letter which was before it. The concession regarding the presence of the SLA insignia was made for the Minister.
In addition, I requested that the parties liaise after the hearing to provide the Court (within 7 days) with an agreed statement as to what the SLA letter said. On 19 July 2022 my chambers received an email from the applicant’s solicitor which stated as follows:
I would be pleased if you could advise her Honour as follows:
1. In accordance with her Honour's directions made at the hearing of this matter last week, the legal representatives for the parties have consulted with each other to provide agreed wording of the documents in the Supplementary Court Book page-1.
2.The Applicant was able to locate the document provided to the Department for copying.
3.Accordingly it is agreed that a scanned copy should be forwarded to the Court. It will be obvious a scanned copy is significantly clear that the document provided to the IAA by the delegate. Please note the document produced by the Applicant and forwarded herewith was not before the IAA.
While the newly provided scan of the SLA letter very clearly showed the letterhead/SLA insignia, aspects of its content remained unclear. At my direction, my Associate responded to the parties to note this. The fact that it was “agreed” between the parties to provide the copy of the document did not resolve the issue raised nor comply with what the Court had requested. They parties provided a joint response with agreed wording on 21 July 2022 which is set out at [45(d)] below.
Accordingly, for the purpose of resolution of the ground of review before me, it is not in dispute that the SLA letter:
(a)was dated 27 September 2012 (see delegate’s decision at CB 112.7);
(b)was received by the applicant in early October 2021 (see Authority’s decision at CB 134 [5] (bullet points 6 to 7));
(c)bears the SLA insignia; and
(d)says the following (with relevant anonymisation):
[DEP17]
[Address]Sir,
This is to inform you that you are called for inquiry on 2.10.
2012 at 10.30 a.m. at the above place. Please attend the inquiry
without fail. If you fail to attend s cre action will be taken [illegible]
against you.Thanking you,
Yours truly,[Signature]
[Name]
[Rank]
[Division]CONSIDERATION
The sole ground of review centres on the SLA letter and the Authority’s consideration of it which, the applicant alleges, lacked an active intellectual process. The applicant submits that it was unreasonable for the Authority to have found inferentially that the SLA letter was not genuine because:
(a)its content was consistent with the applicant’s claims;
(b)it bore a SLA insignia; and
(c)there was otherwise no evidence that it was not genuine because it had not undergone formal document examination.
The Minister concedes that if the error is established, it would be material because consideration of the SLA letter as being genuine could have resulted in the Authority accepting that the applicant was still of interest to authorities in 2012 which, in turn, could have led to a different outcome.
In support of the allegation that the Authority failed to undertake an active intellectual process, the applicant relies on AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 and the authorities cited therein, including Tickner v Chapman (1995) 57 FCR 451 at 462; WZAQU v Minister for Immigration and Citizenship (2013) 233 FCR 534 at [12] and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [46], [212]. The decision of AGA16, aside from dealing with a Tribunal review under Part 7 of the Act (and not Part 7AA as with the instant case), directed itself to the quality of engagement required in order to satisfy the Court that a particular claim was “considered”.
The applicant also relied on Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (albeit without pinpoint references). In that decision Kiefel CJ found as follows at [10] to [12] (footnotes omitted):
[10] In the joint judgment in Minister for Immigration & Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11] Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.
[12] In Minister for Immigration & Citizenship v Li reference was made to what had been said in Klein v Domus Pty Ltd regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision‐maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts.
In SZVFW the Court was considering the reasonableness of a Tribunal’s exercise of discretion in proceeding to make a decision on the review without further opportunity to the review applicants to appear, in circumstances where it was satisfied that a hearing invitation had been sent to their last known address. Unsurprisingly, her Honour was considering reasonableness in the context of the exercise of discretion of a statutory power (hence citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).
In the instant case the allegation in relation to the Authority’s finding at [17] appears, in truth, to be one of outcome focussed unreasonableness, in the sense discussed in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (see in particular per Allsop CJ at [6] to [11]; see also Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [54]–[65]), namely that the conclusion reached by the Authority that the SLA letter had been provided to embellish the applicant’s claims, in effect constituted a finding that the SLA letter was not genuine and that this conclusion is legally unreasonable.
In Stretton (supra), Allsop CJ cautioned (at [12]) that:
Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
Each member of the Court in Stretton referred to the discussion in Li at [28] where French CJ held that:
…After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
Lastly, of particular pertinence in Stretton, Wigney J summarised the task for the Court at [92] as:
The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] at [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]–[45]), or if the decision is within the “area of decisional freedom” of the decision-maker (Li at [28] at [66] at [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently…
In assessing whether the Authority’s findings at [17] of its reasons for decision were unreasonable, it is not for this Court to substitute its own view of the SLA letter and whether it is genuine or otherwise. The Court is only to assess whether the conclusion/s of the Authority in relation to the SLA letter were open to it, within the bounds of the statutory power it was exercising by reference to whether there was an evident, transparent and intelligible justification for finding that the SLA letter had been provided to embellish the applicant’s claims and, ergo, was not a legitimate document.
At hearing, emphasis was placed on the Authority’s expression “I share the delegate’s concerns, expressed to the applicant during the visa interview…” and the Court was taken to CB 112 to 113 to examine precisely what those concerns were said to be. The import was that certain of the Authority’s concerns had not in fact been concerns raised by the delegate, most significantly, the fact that the Authority highlighted that the SLA letter was written in English. The submission was made for the applicant (T 9:40-42):
So looking at whether or – the point about it being written in English, we pose the question, well, what different would it, does it make. The tribunal doesn’t say that it shouldn’t have been written in English, that it should have been written in Tamil.
However, this submission is not borne out from a fair reading of the reasons of each of the delegate and the Authority.
At CB 113.3 the delegate expressly stated (error in original):
It is also strikes me as unusual that the threat letter was written in English and not in Sinhalese or Tamil.
The applicant says that it was not significant that the SLA letter was in English because other documents in the Court Book are also in English, namely:
(a)the HRC letter (CB 66);
(b)the applicant’s fishing pass (CB 67 to 68); and
(c)a letter of reference from a parish priest in Sri Lanka (CB 69).
While it is true that the documents referred to in the preceding paragraph are in English, there are a number of logically distinguishing features which detract from the analogy including:
(a)the documents described at [59(a)] and [59(c)] are not correspondence to the applicant, but rather were intended for a broader (English reading) audience; and
(b)each of the HRC and parish priest letters was written as a reference for the applicant to attest to third parties that the applicant was in danger and to the veracity of his protection claims.
In relation to the fishing pass, it is not a relevant analogue because it is also not correspondence to the applicant.
Further, by his SHEV application, the applicant records that he speaks, reads and writes only in Tamil (in circumstances where the question expressly requests that English be included) (CB 33 at Q30). Accordingly, on the information before the Authority, the applicant does not speak, read or write in English. Consideration of the fact the SLA letter was addressed to the applicant and written solely in English (Cf the letters referred to in [55(a)] and [55(c)] above) in contrast to that information about the applicant and concluding it to be an unusual feature of the document, and one which might belie authenticity, does not lack an evident and intelligible justification.
Next, the Authority’s statement that it shared concerns of the delegate was not an exhaustive or exclusive proposition. The Authority was not expressing that its concerns were those, and only those, expressed by the delegate. So when the applicant submits that it is a matter of moment that one factor that was included in the Authority’s consideration of the SLA letter was that it was provided late in the review process, ie at the SHEV interview and not at a time earlier, namely with the visa application at a time when the applicant provided many other supporting documents, this does not further the claimed error. Rather than evidencing a lack of intellectual engagement on the part of the Authority, if anything it demonstrates the Authority was engaging to a greater degree than the delegate had (considering that the late provision to the delegate was a fact which was also known to the delegate).
The applicant placed significance on the fact that no detailed document examination had been undertaken of the SLA letter. Each of the delegate and the Authority acknowledged this limitation in making their findings.
It can be accepted that there will be instances in which an expert and/or forensic assessment of a document might be necessary (for example, a passport). However, not every document will require such an assessment in order for a decision-maker to give it limited or no weight, or to find that it cannot be accepted as genuine.
Sometimes, the matters which will cause a decision-maker to reject a document as being genuine may come down to common sense, a reasonable appreciation of human experience and personal or specialised knowledge: see Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 397 ALR 1 at [39] per Allsop CJ, Besanko and O’Callaghan JJ (citing Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395 ALR 403 at [17] to [21]). Examples of this might include internal inconsistencies within a document, implausibilities such as the incongruity of dates, the circumstances or time at which the document is provided or the explanation of the document’s provenance. Such matters may turn on logic, chronology and the facts and circumstances of the case itself and require no forensic analysis. That the Authority did not make specific reference to country information regarding the prevalence of document fraud in Sri Lanka does not render the conclusions reached unreasonable, legally or otherwise.
I reject the assertion that in reaching the conclusion at [17] the Authority failed to engage in an active intellectual process. There is nothing to suggest that the Authority rested solely on the findings of the delegate, but rather it considered those findings for itself and in large part agreed. Each of the individual factors assessed within [17] have a reasonable, evident and intelligible justification. Cumulatively that is also so. Each of those factors has also been actively engaged with, in some regards to a greater extent than done by the delegate.
Lastly, the applicant submitted that the Authority had not expressed a basis by which it was said that the document was not genuine. However, this contention overlooks that this is entirely what paragraph [17] of its reasons was explaining.
For the foregoing reasons, I am not satisfied that the conclusion at [17] of the Authority’s reasons was legally unreasonable or that it gave rise to any other error. The decision is not affected by jurisdictional error and is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 5 August 2022
0
14
0