Dga17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 128

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

DGA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 128

File number(s):	MLG 1546 of 2017
Judgment of:	JUDGE RILEY
Date of judgment:	2 March 2022
Catchwords:	MIGRATION LAW – Immigration Assessment Authority – protection visa – whether the Authority failed to consider a claim – whether the Authority’s reasons for decision were irrational.
Division:	Division 2 General Federal Law
Number of paragraphs:	45
Date of hearing:	7 February 2022
Place:	Melbourne
Counsel for the applicant:	Mathew Kenneally
Solicitor for the applicant:	Victoria Legal Aid
Counsel for the first respondent:	Rachel Francois
Solicitor for the first respondent:	The Australian Government Solicitor
Counsel for the second respondent:	No appearance
Solicitor for the second respondent:	The Australian Government Solicitor

ORDERS

MLG 1546 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DGA17
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	2 MARCH 2022

THE COURT ORDERS THAT:

1.The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The decision of the Immigration Assessment Authority made on 3 July 2017 in matter number IAA16/01426 be set aside.

3.The matter be remitted to the Immigration Assessment Authority for determination according to law.

4.The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,853.

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

Note:This copy of the court’s reasons for judgment may be subject to review 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 RILEY:

INTRODUCTION

1. This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is a Tamil citizen of Sri Lanka.

   BACKGROUND

2. In his written submissions filed on 24 January 2022, the Minister provided the following background to this matter:

   3.The applicant is a 54-year-old male citizen of Sri Lanka who arrived at Christmas Island on 6 September 2012 as an unauthorised maritime arrival (CB 53). The applicant applied for the visa on 24 May 2016 (CB 32 - 110). On 18 November 2016, a delegate of the Minister refused to grant the applicant the visa (CB 141 - 153).

   4.On 23 November 2016, the delegate’s decision was referred to the IAA (CB 155). On 3 July 2017, the IAA affirmed the delegate’s decision (CB 201 - 217).

   5.The applicant’s claims for protection are set out in his two statutory declarations provided with his visa application (CB 74 - 81). In summary, the applicant claimed to fear harm based on his ethnicity – being Tamil - and an imputed anti-government political opinion. The applicant gave a history of past harm and harassment that was largely accepted by the IAA. In particular, he gave the following history:

   5.1.     the Karuna group kidnapped his brother;

   5.2.the Eelam People’s Democratic Party (EPDP) threatened the applicant and his family for money;

   5.3.he had operated a grocery business from 1999-2004 and the Sinhalese would buy items on loan but not repay the loans. When the applicant asked for money they abused him and broke windows in the shop. The applicant complained to the police but unhappily settled his Court case and closed the business;

   5.4.after fishing one day the applicant was detained by the Navy who beat him;

   5.5.the Karuna group would beat the applicant if he refused to work for them, and if he did work for them then he would not be paid and was beaten when he demanded payment;

   5.6.a son of the applicant’s sister was arrested by the Sri Lankan government on suspicion of being an LTTE member in 2000. Another of his sister’s sons was kidnapped in 2006 by government authorities. His sister’s husband was kidnapped and murdered in 1991/1992;

   5.7.three months before the applicant left Sri Lanka, a group of Sinhalese attacked the applicant and all of the people in the applicant’s village, which was mostly populated by Tamils;

   5.8.the Sri Lankan government will assume the applicant is an LTTE member because he sought asylum; and

   5.9.the applicant will be arrested and put in jail on return to Sri Lanka as an illegal departee. He will receive worse treatment in jail because he is Tamil.

   6.The precise terms of the last claim are important given ground four of the amended application. In particular, the applicant stated in his second declaration (CB 75 [15] – [16]):

   “I understand that because I left the country illegally by boat, I will be arrested on my return and put in jail. I will receive worse treatment in jail because I am Tamil. I am not sure how long I will be in jail. I could be in jail a very long time. I understand the fine for me will be 100,000 Sri Lankan rupees. It will be very difficult for my family to pay the fine. I also understand the Court could ask for a guarantee from a family member or friend. Nobody back home can provide this guarantee for me.”

   7.In support of his application, the applicant also submitted a letter from a mental health social worker which indicated he had been treated for “depression” in Australia which was showing “significant improvement” (CB 132).

   THE AUTHORITY’S REASONS FOR DECISION

3. In his written submissions filed on 24 January 2022, the Minister summarised the Authority’s reasons for decision as follows:

   8.The IAA obtained the most recent version of the Department of Foreign Affairs and Trade (DFAT) report, which was published after the delegate’s decision. It was satisfied there were exceptional circumstances to consider the report (CB 202 - 203 [7]).

   9.It is uncontroversial that the IAA accepted the applicant’s claims relating to his family (including the claim that one of his sisters is missing), in their entirety (CB 205 [15]-[16]). The IAA noted that the applicant still had one sister, his wife and children living in Sri Lanka (CB 205 [16]). Amongst other things, the IAA accepted that in 2000 the SLA arrested the applicant’s nephew on suspicion of LTTE links however, it noted that the applicant had not claimed he or his family ever supported the LTTE, nor had he claimed to have ever been questioned about his nephew’s suspected LTTE link, or claimed that he had any sort of profile arising from this familial link (CB 206 [18]).

   10.The IAA also accepted the applicant’s claims that upon return from Saudi Arabia in 1995, the EPDP and Sinhalese people targeted him for extortion and that he had to pay them money to protect his family. It also accepted that in 2004, the Karuna Group used to force the applicant to work for them for free, and that when he complained, they assaulted him (CB 206 [20]). Based on current country information, the IAA did not find it plausible that paramilitaries such as the Karuna Group, were in a position to extort the applicant or force him to work for them again, should he return to Sri Lanka. The IAA was not satisfied that the applicant faced a real chance of harm from the Karuna Group, or any other paramilitary group in Sri Lanka (CB 206 [21]).

   11.The IAA accepted that the applicant was discriminated against when he worked for the Council in 1998. It further accepted that the applicant lodged a police complaint against the Sinhalese people who had damaged his shop and that authorities did not take effective action against the Sinhalese who were responsible. The IAA further accepted that other Sinhalese workers abused him when he worked in the construction industry as a mason and a painter. It accepted that when the applicant returned from India in 2008, he experienced at least one incident where Sinhalese people attacked him in the street because of his Tamil ethnicity. The IAA noted that this took place in the final stages of the civil war, when tensions between the Sinhalese and Tamil communities were high (CB 206 - 207 [22] - [23]).

   12.The IAA found that the applicant’s shop was damaged by his Sinhalese customers, not by members of the Karuna Group. Given that the applicant continued to reside at the same address where the shop had stood until his departure in 2012, the IAA was not satisfied that the applicant faced a real chance of harm for this reason (CB 207 [24]).

   13.The IAA accepted the applicant’s claim of the mistreatment he and other Tamil fishermen experienced at the hands of the Navy from 2004. It noted that country information indicated that fishing rights in the north and east had improved since the applicant was last in Sri Lanka. The IAA noted that the applicant had demonstrated experience working in several other industries besides fishing. While the IAA accepted the Navy and Sinhalese fishermen had previously mistreated the applicant, he had not claimed he had any sort of adverse profile related to his past as a fisherman. The IAA was not satisfied that the applicant faced a real chance of harm for this reason (CB 207 [26] - [27]).

   14.The IAA further accepted the applicant’s claim that a few months prior to his departure from Sri Lanka, a group of Sinhalese attacked the applicant’s village. It accepted that the police did not take action against the Sinhalese who attacked the applicant’s village. However, the IAA was satisfied that the authorities were willing to resolve a very similar matter, and provide protection to Tamil communities in the applicant’s home area. The IAA noted that the applicant had not claimed that he or his family were targeted in the attack on his village, nor had he claimed similar attacks had taken place against his village since he has been in Australia. The IAA was not satisfied that the applicant faced a real chance of harm for this reason (CB 207 - 208 [28] - [30]).

   15.In relation to the applicant’s claims regarding the disappearance of a number of his family members, the IAA considered that some of his family members, like his nephew, may have been imputed to have an LTTE association by the authorities. Given the passage of time since the arrest of the applicant’s nephew, and the deaths and disappearances of his other family members, the IAA was not satisfied the applicant would be imputed with a pro-LTTE political opinion for reason of his familial links should he return to Sri Lanka (CB 208 - 209 [33] - [35]).

   16.Whilst the IAA accepted the applicant faced incidents of discrimination and mistreatment in the past, based on his personal circumstances, and the greatly improved country conditions, the IAA was not satisfied that the applicant faced a real chance of discrimination or mistreatment amounting to serious harm if he returned to Sri Lanka (CB 209 [35]).

   17.The IAA accepted the applicant could no longer lift heavy objects and so may no longer be able to work in some of the industries where he had previously worked in Sri Lanka. However, the IAA was not satisfied there were any significant barriers to the applicant being able to obtain employment, or that his capacity to subsist would be threatened (CB 209 [36]).

   18.It is the IAA’s last set of findings which are the focus of this application. In particular, the IAA did not accept that the applicant faced a real chance of harm on account of the time he had spent in Australia seeking protection (CB 209 [38]). The IAA was satisfied that, as an illegal departee, there was a real chance the applicant would be questioned, fined and held briefly as part of the re-entry process. It was not satisfied that the questioning, payment of a fine, or being held in detention for a period of 24 hours at the airport, or possibly nearby prison amounted to serious harm (CB 209 - 210 [41] - [42]). The IAA also found the Immigrants and Emigrants Act 1949 (I&E Act) applied to all Sri Lankan citizens, and was not discriminatory on its face or its application. Accordingly, the treatment the applicant would face on return to Sri Lanka did not amount to persecution (CB 210 [43]).

   19.For these reasons, the IAA found the applicant did not meet s 36(2)(a) of the Migration Act 1958 (Cth) (Act) (CB 210 [45]).

   20.Based on its earlier findings, the IAA was satisfied that there was no real risk of significant harm to the applicant as a Tamil, or due to his familial links or past experiences (CB 211 [48]).

   21.The IAA accepted the applicant may face some disadvantage in respect to employment opportunities as he could no longer lift heavy objects, but noted that he had worked in a variety of industries in Sri Lanka and overseas. The IAA was not satisfied that any disadvantage faced by the applicant in respect to his employment options would amount to significant harm (CB 211 [49]).

   22.Again, this application focuses on the IAA failure to be satisfied that the imposition of a fine, any detention and/or other treatment he was liable to receive under the I&E Act amounted to significant harm (CB 211 - 212 [50] - [52]).

   23.Accordingly, the IAA found the applicant also did not meet s 36(2)(aa) of the Act (CB 212 [54]).

   MATERIAL RELIED UPON

4. The applicant relied upon the affidavit sworn or affirmed by Rachel Mason on 4 February 2022. The applicant did not rely upon the affidavit sworn or affirmed by Rachel Mason on 17 December 2021.

   GROUND 1

5. The first ground of review in the application filed on 20 July 2017 and amended on 17 December 2021 (“the application”) is:

   The IAA failed to consider the applicant’s claim or an integer of his claim to satisfy s 36(2)(a) or (aa) of the Act being that he would face mistreatment in prison because he was Tamil.

   Particulars

   (a)The applicant clearly articulated a claim to fear serious or significant harm on return to Sri Lanka for reason of his illegal departure from Sri Lanka.

   (b)The applicant clearly articulated a claim, or a claim clearly emerged from the material that:

   (i)he would face mistreatment if held in jail for having departed Sri Lanka illegally;

   (ii)that mistreatment could be from prison guards or other prisoners; and

   (iii)the treatment of the applicant would be more severe because he is Tamil.

   (c)The IAA failed to consider the claim at particulars (a) and (b); or alternatively failed to consider particular (b) being an integral part of the claim at particular (a).

6. The applicant made the relevant claim in a statutory declaration dated 24 May 2016, where he said:

   [13]People who have fled the country are considered by the government to be LTTE.

   [14]There is no guarantee for my safety if I go home. I believe that the government will arrest me, put me in jail, and beat me. This is because they think I am LTTE.

   [15]I understand that because I left the country illegally by boat, I will be arrested on my return and put in jail. I will receive worse treatment in jail because I am Tamil. I am not sure how long I will be in jail. I could be in jail for a very long time.

   [16]I understand the fine for me will be 100,000 Sri Lankan rupees. It will be very difficult for my family to pay the fine. I also understand the Court could ask for a guarantee from a family member or a friend. Nobody back home can provide this guarantee for me.

   [Emphasis added]

7. The claim that the applicant might receive mistreatment in prison from guards or other prisoners was not expressly stated, but it is implicit. It is obvious that the mistreatment the applicant claimed to fear could come from either of those sources.

8. The Authority summarised the relevant part of the applicant’s claims at paragraph 8 of its reasons for decision as follows:

   The applicant fears the Sri Lankan authorities and associated paramilitaries, such as the Karuna Group, will detain, interrogate, torture or kill him because: he is a Tamil from the Eastern Province who will be imputed to be an LTTE supporter/member; he has had previous interactions with the paramilitaries and the Navy; and he will be unable to pay a fine associated with his illegal departure from Sri Lanka in 2012.

9. The Authority did not include in its summary of the applicant’s claims the distinct point that he would receive worse treatment in jail because he is Tamil.

10. The applicant submitted that:

    (a)the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum–Seekers from Sri Lanka, 21 December 2012, referred to the occurrence of mistreatment in custody; and

    (b)the UK Home Office Country of Origin Information (COI) Report, Sri Lanka, dated 7 March 2012, documented reports of mistreatment within Sri Lankan prisons, and that on remand non-violent prisoners were held in over-crowded conditions with prisoners accused of serious offences.

11. However, as the Minister pointed out, the Authority relied on a more recent report, being the Department of Foreign Affairs and Trade Country Information Report Sri Lanka dated 24 January 2017. The Authority said at paragraph 31 of its reasons for decision that that report indicated that:

    … the overall situation for Tamils in Sri Lanka has improved considerably since the end of the civil conflict in 2009.

    (footnote omitted)

12. The Authority continued in paragraph 31 of its reasons for decision as follows:

    … The most recent (2012) UNHCR Guidelines do not specify individuals of Tamil race as requiring protection for that reason alone. Furthermore, in the UNHCR’s opinion, individuals originating from an area where the LTTE were previously active, such as the applicant, do not require protection solely on that basis unless there are additional, relevant factors which may give rise to a profile of risk.

13. The Authority accepted in paragraph 41 of its reasons for decision that there was a real chance that the applicant would be “held briefly as part of the re-entry process”. The Minister conceded that the Authority did not deal specifically with the applicant’s claim that he would suffer mistreatment in prison because he is Tamil. However, the Minister argued that the Authority dealt with the claim by making findings of greater generality.

14. The first of the findings of greater generality were the findings at paragraph 31 of the Authority’s reasons for decision set out above. The finding that the situation had “considerably improved” for Tamils does not deal with the claim now under consideration. The situation being “improved considerably” for Tamils does not necessarily mean that the situation has improved sufficiently to mean that a particular applicant does not face a real risk of serious or significant harm in a particular context.

15. The balance of paragraph 31 of the Authority’s reasons for decision, set out above, uses the language, “that reason alone” and “additional, relevant factors”. That is, the findings, if they can be called that, in paragraph 31 of the Authority’s reasons for decision, do not purport to apply to all contexts. On the contrary, paragraph 31 addressed the general situation for Tamils in the Sri Lankan community.

1. Prisons are renowned as places of violence and degradation. General findings, of the type stated in paragraph 31 of the Authority’s reasons for decision, particularly as those findings expressly incorporate exceptions, do not cover the specific and express claim that the applicant feared receiving worse harm in prison because he is Tamil.

2. The second group of findings of greater generality relied on by the Minister were in paragraph 35 of the Authority’s reasons for decision, which is as follows:

   I am not satisfied the Sri Lankan authorities will impute the applicant to be pro-LTTE because of his Tamil race, his familial LTTE links, or his origins in the Eastern Province, where the LTTE were previously active. The applicant has not claimed to have a profile of any sort with the Sri Lankan authorities, nor on the evidence before me am I satisfied that he has one. For the reasons above I am also not satisfied the applicant’s previous interactions with the EPDP, the Karuna Group or the Navy have resulted in any ongoing adverse interest in him. While I have accepted the applicant has faced incidents of discrimination and mistreatment in the past, based on his personal circumstances, and the greatly improved country information, I am not satisfied he faces a real chance of discrimination or mistreatment amounting to serious harm now, or in the future. Overall I find the applicant does not face a real chance of suffering serious harm for any of the reasons above, should he return to Sri Lanka. 

3. It is noteworthy that paragraphs 31 to 35 of the Authority’s reasons for decision were under the broad heading, “Refugee assessment” and under the sub-heading, “Tamil male from the East – Imputed pro-LTTE/anti-Sri Lankan Government Political Opinion”. Still under the “Refugee assessment” heading, the Authority had an entirely separate sub-heading, “Returning Asylum Seeker from Australia – Illegal Departure”. It was under the sub-heading, “Returning Asylum Seeker from Australia – Illegal Departure”, that the Authority could have been expected to consider the question of the applicant’s treatment in prison, because it was as a returned illegal departer that the applicant faced a real chance of being imprisoned.

4. In any event, I am not persuaded that the findings in paragraph 35 of the Authority’s reasons for decision deal with the applicant’s express and specific claim that he feared being treated more badly in prison because he is a Tamil. Paragraph 35 is obviously dealing with the position of Tamils in the community generally. As mentioned above, prison is a very specific context, with its own very specific risks.

5. The third group of findings of greater generality relied on by the Minister were in paragraph 48 of the Authority’s reasons for decision.  That paragraph is under the heading, “Complementary protection” and is as follows:

   The country information cited above indicates that Tamils, including Tamil males, are no longer at a real risk of harm for that reason alone, even when they originate from the Eastern Province, a former LTTE area, like the applicant does. I accept the applicant has a familial link to the LTTE through his deceased nephew, but that he does not have an imputed political opinion, or profile, as a result. I accept during the civil war members of the applicant's family disappeared, or were killed by the Sri Lankan authorities or paramilitaries such as the Karuna Group. I accept the EPDP extorted the applicant for money and the Karuna Group forced him to work without pay and assaulted him. I accept the applicant has experienced instances of discrimination and mistreatment from the Sri Lankan authorities, such as the Navy, as well as from Sinhalese citizens, who had the backing of the Sri Lankan authorities. I accept in 2012 Sinhalese people attacked the applicant's village. However I have not accepted that the applicant would face a real chance of serious harm in relation to any or all of these reasons upon return. For the same reasons I also find there is not a real risk he will suffer significant harm.

6. Again, this paragraph was obviously dealing with the position of people in the general community. It does not address the position of a Tamil in the very unusual and specific context of prison.

7. I am not persuaded that the Authority made any findings of greater generality that address the applicant’s claim that he feared receiving worse treatment in prison because he is Tamil.

8. The Minister argued orally that, because the applicant had not previously been imprisoned, he could only claim to fear harm in prison because of his previous mistreatment. This argument was misguided. People can fear a particular type of harm for the purposes of the refugee convention and complementary protection without having ever experienced that particular type of harm in the past.

9. I would also note that it is not for the court to examine the evidence before the Authority and conclude that, because that evidence might have allowed the Authority to make certain findings, the Authority did make those findings.

10. I also note that the Authority is obliged to consider a claim that is expressly and clearly made, even if there is no country information to support that claim. In such circumstances, the claim might be easily disposed of, but it still must be considered.

11. Ground 1 is made out.

    GROUND 2

12. The second ground of review in the application is:

    The IAA’s conclusion that the applicant would face a real chance of serious harm or significant harm for reason of his illegal departure and therefore did not satisfy s 36(2)(a) or (aa) of the Act was irrational and illogical or affected by irrational and illogical reasoning and/or legally unreasonable.

    Particulars

    (a)       The applicant repeats particulars (a) – (b) of ground 1.

    (b)The IAA was required to reach the state of satisfaction as to whether the applicant satisfied s 36(2)(a) and (aa) on a rational, logical, and probative basis, and/or within the bounds of legal reasonableness.

    (c)The IAA found at [40] – [41] that if the applicant plead guilty, he would be fined and released immediately.

    (d)The IAA found at [42] and [50] that if the applicant plead not guilty to having departed illegally, he would be released on personal surety, or with a family member acting as guarantor.

    (e)The applicant claimed – and the IAA appeared to accept at [50] – the applicant did not have a family member in Sri Lanka to act as guarantor.

    (f)The IAA found at [42] it was not satisfied that even if the applicant plead not guilty that he would be detained any longer than if he plead guilty.

    (g)The IAA’s finding at particular (f) was irrational and illogical as on its own reasons the applicant would spend a longer period of time in jail if he plead not guilty and was not released on a personal surety.

    (h)The IAA’s conclusions that the applicant would not face a real chance of serious harm or real risk of serious harm or significant harm was irrational, illogical, and/or unreasonable or based on irrational and/or illogical reasoning that the applicant would not face a longer period of detention if he plead not guilty.

13. In his written submissions filed on 17 January 2022, the applicant said:

    13.The IAA’s conclusion the applicant would not face serious or significant harm on remand was predicated on the conclusion that, in any scenario, the applicant would be released almost immediately from custody. That conclusion was irrational or failed to take into account the circumstance in which the applicant needed and could not find a guarantor to secure his release.

    14.The applicant claimed, and the IAA accepted, that he did not have a family member to act as a guarantor. The IAA at [50] stated:

    If he pleads not guilty he will be granted bail immediately on the basis of personal surety, or with a family member acting as a guarantor, pending a hearing. I note the applicant does not have a family member who can act as guarantor, and I accept that in any of these scenarios he may be held in detention for a short period.

    15.      The IAA, however, at [42] stated:

    I note in some cases a family member is required to collect illegal departees who are released, or to act as a guarantor if personal surety is not granted. I have considered the applicant’s claim that it would be “very difficult” for his family to pay a fine associated with his illegal departure, and that there is no family member who could act as his guarantor. I am not satisfied on the evidence that even if he pleads not guilty, he will detained any longer.

    [Emphasis added]

    16.The IAA’s reasons are not logical. The IAA at [50] accepted that there may be a scenario in which the applicant could plead not guilty and not be released on a personal surety. The IAA accepted that the applicant did not have a guarantor to secure his release. As a matter of logic, in the absence of the IAA identifying another basis for the applicant’s release, he would be detained longer if he plead not guilty and was denied release on his own surety. The IAA identifies no other way the applicant could be released if he plead not guilty. It follows the IAA’s conclusion the applicant would not be detained any longer if he plead not guilty and was denied a personal surety is irrational and illogical.

    17.The error is jurisdictional. By ground 2, the IAA’s conclusion that the applicant would not face serious or significant harm, was irrational or based in irrational reasoning that the applicant would only spend a short time in custody even if he plead not guilty. Put another way, the IAA – for irrational reasons – excluded the possibility of the applicant spending an extended period in jail. That irrationality affected the conclusion that the applicant would not face serious or significant harm in custody (EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409, [83] – [84]).

14. In his written submissions filed on 24 January 2022, the Minister said:

    29.Ground two essentially alleges that it was illogical or unreasonable for the IAA at [42] to assume that the applicant’s period of detention would be brief.

    30.A claim of illogicality or irrationality can only be made out if it can be demonstrated that the IAA formed a view that no rational or logical decision maker could have arrived at on the same evidence: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [130] per Crennan and Bell JJ. For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be shown: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [60] - [61]; citing Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52], [54] - [56].

    31.In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, the Full Court (Allsop CJ, Besanko and O’Callaghan JJ) recently summarised the position as follows ([33] – [35]):

    “The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 517–518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].

    The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.”

    32.In this case, the IAA did not find that the applicant would need a family member to act as guarantor. Rather, the IAA found that in some cases a family member is required to act as guarantor (CB 210 [42]). This finding was predicated on the hypothetical situation where the applicant plead not guilty and was not released on his own surety. The IAA’s findings indicate that it considered it was most likely that the applicant would be released on his own personal surety if he plead not guilty. This provided a logical basis for the IAA’s finding that he would not be detained any longer.

    33.In any event, the IAA gave independent reasons for rejecting the applicant’s claim. In relation to the refugee claims, the IAA found that detention under the I&E Act would be the result of a law of general application and did not amount to persecution (CB 210 [43]). In relation to complementary protection, the IAA found that, even if the applicant was required to spend a brief period in prison, this would not amount to ‘significant harm’ within s 36(2A) of the Act (CB 211 [51]). While the latter finding assumes any period of detention would be brief, the reasoning would seem to be applicable also to a longer period of detention.

15. The problem identified by the applicant could be summarised as follows:

    (a)the Authority accepted that there were only two ways that the applicant could be released from detention if he plead not guilty to illegal departure from Sri Lanka;

    (b)the first was if he were allowed to leave detention on his own personal surety;

    (c)the second was if he were allowed to leave detention with a family member as guarantor;

    (d)not all people are allowed to leave detention on their own personal surety;

    (e)he did not have a family member who could act as guarantor; and

    (f)the Authority was not satisfied that if he plead not guilty, he would be detained any longer.

16. Framed that way, the Authority’s conclusion that, in the events that:

    (a)the applicant plead not guilty; and

    (b)the applicant was not released on his own personal surety; and

    (c)the applicant had no family member to act as guarantor,

    the applicant would not be “detained any longer” is obviously irrational. In the events described, the applicant had no way of being released from detention prior to his trial. 

17. On the other hand, the Authority said at paragraph at paragraph 42 of its reasons for decision that:

    In the event that the applicant pleads not guilty, he will be released on his own personal surety.

    [emphasis added]

18. That suggests that the option of a guarantor being unavailable is irrelevant, because a guarantor will never be needed.

19. However, at paragraph 50 of its reasons for decision, the Authority said that:

    If he pleads not guilty he will be granted bail immediately on the basis of personal surety, or with a family member acting as a guarantor, pending a hearing.

20. That resurrects the option of the guarantor, because it says that either the applicant will be released on his own surety or on the basis of a guarantor. Paragraphs 42 and 50 are inconsistent. I regard paragraph 50 as being the Authority’s actual finding, as it is consistent with the known country information. I regard the “will” in paragraph 42 as being an unintended overstatement.

21. Consequently, I consider that the Authority did make the irrational finding alleged by the applicant. It is a material error, because it means that the Authority did not consider the consequences for the applicant if he were to be held in detention for a prolonged period, which could well happen if the applicant plead not guilty and were not released on his own personal surety.

22. The Minister argued that the Authority had an independent reason for rejecting the complementary protection aspect of this ground, being that the applicant would only be detained for a brief period. That is obviously inconsistent with the possibility, discussed above, that:

    (a)in the event of a not guilty plea; and

    (b)in the event of a refusal to allow a personal guarantee; and

    (c)in the absence of a guarantor,

    the applicant would spend a prolonged period in prison.

23. Ground 2 is made out.

    GROUND 3

24. The third ground of review in the application is:

    The IAA failed to consider, and/or constructively failed to consider, and/or failed to resolve an integral part of the applicant’s claim to fear harm for illegal departure, being that he could spend a long period of time in jail because he did not have a family member to act as a guarantor.

    Particulars

    (a)The applicant repeats and relies on particulars (a) – (b) of ground 1 and particulars (b) – (f) of ground 2.

    (b) The IAA failed to consider – if the applicant plead not guilty to illegal departure and was not released on personal surety – how and when the applicant would likely secure his release.

    (c) Accordingly, the IAA failed to resolve the applicant’s claim that he could spend a long period of time in jail for having departed illegally.

    (d) The error was material - had the IAA found there was a possibility of the applicant facing a longer period of time in custody if he plead not guilty it may have found that:

    (i)the detention itself for a longer period constituted serious or significant harm; and/or

    (ii)the applicant was more likely to suffer mistreatment amounting to serious or significant harm.

25. In his written submissions filed on 17 January 2022, the applicant said:

    18.By ground 3, the IAA constructively failed to consider the applicant’s claim or an integer of his claim to fear harm for illegal departure. The applicant claimed he did not have a guarantor and as a result would spend a longer time in custody. The IAA’s reasons failed to resolve how long the applicant would spend in custody should he plead not guilty and be denied a personal surety. The error is of the type identified by Flick J in SZRRD v Minister for Immigration and Border Protection [2015] FCA 577 at [17]:

    It matters not why the now Appellant’s claim remains unresolved; it may not have been resolved by reason of error, misunderstanding, or inadvertence on the part of the Tribunal. However it occurred, the jurisdictional error remains.⁴

    19.In relation to ground 3, the error was material⁵. Had the IAA considered the prospect the applicant could face a longer period in detention it could have found:

    a.the loss of liberty in itself constituted serious or significant harm – see [41] ofthe IAA decision; or

    b.the applicant faced a real chance or real risk of mistreatment by prison guards,officials, or other detainees that would amount to serious or significant harm.

    :The statement was applied by the Full Court in SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121; 232 FCR 452, [56] and is consistent with NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1, [63]

    :Materiality is incorporated into the requirements for establishing a ground of irrationality see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441, [33].

1. In his written submissions filed on 24 January 2022, the Minister said:

   34.Ground three contends that the IAA failed to consider that the applicant could spend a long time in jail because he did not have a family member to act as a guarantor.

   35.As explained above, the IAA did not find that the applicant would need a family member to act as guarantor, only that it may be required. Accordingly, the availability of a family member to act as a guarantor was not a critical step in the IAA’s reasoning that the applicant would not face serious or significant harm while being detained: see eg DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [97] - [103]. Therefore, the IAA did not need to give specific consideration to whether the applicant may be detained for a longer period of time if he did not have a family member to act as guarantor and if that longer period of detention would amount to serious or significant harm.

2. For the reasons discussed above, the Authority did need to consider whether the applicant might face serious or significant harm during a prolonged period in prison. It failed to do so.

3. Ground 3 is made out.

   GROUND 4

4. The applicant orally withdrew the fourth ground of review in the application at the final hearing. I will say no more about it.

   CONCLUSION

5. As the applicant’s three remaining grounds have been made out, the Authority’s decision will be set aside, and the matter will be remitted for further consideration. The Minister will be required to pay the applicant’s costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated:       2 March 2022