Dhi18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FCCA 2038
•31 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DHI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 2038
File number(s): SYG 1759 of 2018 Judgment of: JUDGE EGAN Date of judgment: 31 August 2021 Catchwords: MIGRATION – Second application for re-instatement of proceeding after dismissal of application for review because of the non-appearance of the applicant – initial application for Safe Haven Enterprise visa denied – adverse credibility findings against applicant – due consideration by Authority of the applicant’s claims – delay in filing of application for re-instatement - no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H(1), 5J, 473CB.
Migration Regulations 1994 (Cth), rr 13.03C(1)(c), 16.05, 44.15(2).
Cases cited: BYF15 v Minister for Immigration and Border Protection [2016] FCA 774.
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
CED15 v Minister for Immigration and Border Protection [2018] FCA 451.
Minister for Immigration and Border Protection v Pandey [2014] FCA 640.
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Number of paragraphs: 47 Date of last submission/s: 24 August 2021 Date of hearing: 24 August 2021 Place: Brisbane Counsel for the Applicant: Mr G. Foster
Solicitor for the Applicant: Sentil Solicitor Counsel for the First Respondent: Mr G. Johnson Solicitor for the First Respondent: HWL Ebsworth Lawyers Second Respondent Submitting appearance save as to costs. ORDERS
SYG 1759 of 2018 BETWEEN: DHI18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
31 AUGUST 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Applicant’s Application in a Case filed on 31 March 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application in a Case filed on 31 March 2021 fixed in the amount of $7, 467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant is a Tamil Hindu citizen of eastern Sri Lanka who arrived in Australia as an unauthorised maritime arrival in 2012.
On 10 May 2017, the applicant applied for a Safe Haven Enterprise Visa (SHEV).
On 22 March 2018, a delegate of the Minister refused the visa application. The decision of the delegate was then referred to the Immigration Assessment Authority (‘the Authority’) for review.
On 24 May 2018, the Authority affirmed the decision of the delegate.
On 25 June 2018, the applicant filed an Originating Application for Review of the decision of the Authority.
Events Subsequent to the Filing of the Originating Application for Review
The application for review was listed for a first return date before a Registrar of the Federal Circuit Court on 16 July 2018. On that date, the Registrar dismissed the application for review pursuant to the provisions of r. 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) due to the non-appearance of the applicant.
The order dismissing the application was made notwithstanding the fact that on each of 11 July 2018 and 12 July 2018, HWL Ebsworth Lawyers had, on behalf of the first respondent, written to the applicant at his nominated address for service advising him that the matter was listed for a directions hearing at 10:15 am on 16 July 2018. In each of the said letters, the applicant was advised that should he not attend the scheduled directions hearing, an application would be made for the dismissal of his application with costs. [1]
[1] See paragraphs 5 and 6 of the Affidavit of Mr Sharma filed on 11 May 2021 together with annexure AS-
On 18 July 2018, a letter was sent by express post to the applicant (at his address nominated on the application for review) by HWL Ebsworth Lawyers. [2] Also sent with such letter was a copy of the Orders made by the Registrar on 16 July 2018, and a copy of r. 16.05 of the Rules (which provided that a Court or a Registrar may vary or set aside a judgment or order after it had been entered if it was made in the absence of a party).
[2] See paragraph 8 of Affidavit of Mr Sharma filed on 11 May 2021 together with annexure AS-3 thereto.
On 10 August 2018, the applicant telephoned a lawyer at HWL Ebsworth Lawyers named Fisher to discuss the dismissal of the applicant’s application for review. Upon the applicant asking the lawyer whether he could make another application to the Federal Circuit Court, the applicant was advised that although legal advice could not be provided to him, a list of legal service providers able to be contacted by him for assistance had been included in the letter sent to him on 11 July 2018. A file note of the relevant conversation was recorded, and was Annexure AS-4 to the affidavit of Mr Sharma. [3]
[3] See paragraph 9 of Sharma affidavit and annexure AS-4 thereto.
The next relevant contact with HWL Ebsworth Lawyers was on 26 September 2019, when a lawyer named Taylor from Sydney West Legal and Migration had sent a letter to Mr Fisher enclosing copies of an application in a case for the reinstatement of the proceeding pursuant to Rule 16.05 of the Rules. The application in a case was filed on 20 September 2019, together with an affidavit in support of such application. [4]
[4] See paragraph 10 of Sharma affidavit and annexure AS-5 thereto.
On 4 November 2019, Sydney West Legal and Migration filed a Notice of Intention to Withdraw as the applicant’s lawyer.
On 19 November 2019, HWL Ebsworth Lawyers received an email from Sydney West Legal and Migration which attached a sealed copy of a Notice of Discontinuance filed on 18 November 2019. The email message conveyed that the Notice of Discontinuance had been filed on the instructions of the applicant. [5]
[5] See paragraph 12 of Sharma affidavit and annexure AS-6 thereto.
Consequent upon the filing of the Notice of Discontinuance, a Registrar ordered, pursuant to Rule 44.15(2) of the Rules, that the applicant pay the first respondent’s costs of and incidental to the application in a case fixed in the amount of $1,864.00. [6]
[6] See paragraph 13 of Sharma affidavit.
On 4 December 2019, HWL Ebsworth sent email correspondence to the applicant advising the applicant of the making of the costs order by the Registrar on 3 December 2019. [7]
[7] See paragraph 14 of Sharma affidavit and Annexure AS-7 thereto.
The next relevant involvement of HWL Ebsworth Lawyers was its receipt of an email from Registry staff on 14 April 2021 advising such firm that an application in a case and supporting affidavit seeking the setting aside of the Registrar’s dismissal order, and reinstatement of the proceeding, had been filed on 31 March 2021, and that the matter had been listed for hearing before this Court on 10 May 2021.
On 8 June 2021, the Court ordered that the lawyers for the first respondent prepare a Court Book, including all relevant material which was before the Authority. It was ordered that the matter be adjourned for final hearing (after preparation of the Court Book) to 23 August 2021. Leave was also granted to the applicant to file an Amended Application for Review, [8] the grounds of which were as follows:
[8] Amended Application for Review filed on 8 June 2021.
“Ground of Application
1. The IAA erred when it did not accept the Applicant’s submission that he was scared of disclosing his association with the two LTTE members, D and S, until 2012 and did not accept he was closely associated with them as he claimed.
Particulars.
i. Paragraph [14];
ii The IAA stated “The Applicant did not mentioned the association at all in the arrival interview so I have some concerns about the credibility of his claims in this regard. The Applicant submitted that he was scared of disclosing this information to the Australian government in particular due to Australia’s close relationship to the Sri Lankan Government.” [14];
iii. The IAA then stated “I do not find this plausible particularly as he was willing to make other claims about the Sri Lankan Government in particular accusing SLA and police of extortion harassment and discrimination.'' [14];
iv. The IAA considered the main reason why it rejected the Applicant's claim was because: “he was willing to make other claims about the Sri Lankan Government in particular accusing SLA and police of extortion harassment and discrimination.” [14];
v. The IAA failed to consider that, from the Applicant's viewpoint, the disclosure of his association could have led to repercussions against him by the authorities as having been associated with LTTE, whereas mere criticisms of the Sri Lankan Government was not something that would lead to reprisals or arrest or imprisonment by the Sri Lankan Government;
vi. Alternatively, there is no evidence that criticisms of the Sri Lankan Government would lead to similar punitive results as disclosure of an association with LTTE members,
And accordingly the IAA's failure to accept the Applicant was closely associated with the LTTE members was unreasonable, such that the IAA committed jurisdictional error.
2. The IAA erred when it was satisfied that the Sri Lankan authorities did not suspect the applicant had any association with the LTTE, and the Sri Lankan authorities did not ultimately consider the applicant to be an LTTE member or have links to the LTTE because of his ethnicity, his association with S and D, his father or other family members or his family members' circumstances since he left Sri Lanka.
Particulars.
i. Paragraph [26];
ii. The IAA was so satisfied, because the Applicant was investigated for LTTE links based on his ethnicity and connections, and released shortly after and never arrested charged or forced to undertake rehabilitation as a result [26];
iii. The IAA noted the Applicant's claim regarding S and D [15] that they were released within 2 days and not arrested prosecuted or referred for rehabilitation but did not consider these claims further;
iv. The IAA noted the Applicant's claims regarding
a. S and D being LTTE [5];
b. S telling the Applicant that D was missing 3 months or less after D was released from custody [16],
c. that 2 days after plainclothes men came to his house who continued to visit his parents' home [16],
d. that police were looking for him in [name of place omitted] [16];
yet did not consider these claims further [16];
v. The claims were all very significant, as they would have supported the Applicant’s fears if true since they could have indicated/confirmed:
a. D and S were L TIE;
b. D was held in custody along with the Applicant and S,
c. D was deliberately killed; thereby raising the possibility that the Applicant was also likely to be killed by the Sri Lank.an authorities;
d. Plainclothes men and police were searching for the Applicant to do harm to him as was done to D.
Accordingly the IAA failed to consider important claims, amounting to jurisdictional error.”
[names of places omitted]
Consideration of Reinstatement Application
Rule 13.03C(1)(c) of the Rules relevantly provided as follows:
“Default of appearance of a party
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court of a registrar may do 1 or more of the following:
(a) …
(b) …
(c) if the absent party is an applicant – dismiss the application;
(d) …”
Rule 16.05(2)(a) of the Rules relevantly provided as follows:
“Setting aside or varying judgments or orders
(1) …
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) …”
The power to set aside an order of a Registrar dismissing a proceeding pursuant to Rule 13.03C(1)(c) of the Rules is discretionary. In BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 at [30], Perry J said as follows:
“[30]In this regard the principles which govern the exercise of power under rule 16.05(2) of the FCC Rules were identified by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]:
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.”
In an affidavit filed on 31 March 2021, the applicant set out how he had arrived late for the first listed hearing date before the Registrar on 16 July 2018. His affidavit relevantly provided as follows:
“I, [name omitted] of [address omitted] and employed affirm:
1. I wish to explain why I did not attend at the first Court date on 16th July 2018.
2. I received a letter from the Court advising of the Court date some month ago. However when I moved houses the letter and file was misplaced and I couldn't find it.
3. I think there may have been a letter on my email, but unfortunately I had changed my phone and lost the password and lost access to my e-mail account.
4. On the date of the first Court date, I actually mixed up the time for the court first Court date. I thought it was at 11.15. I arrived downstairs in the Court building at 10.40. I then spoke to the two people at the reception on the ground floor. They told me the room and the level number and that I should go and sit in the Court room there.
5. I went through security, and to the lift, and I went upstairs. I went to the Court room and went into the Court room and sat there and waited for my name to be called. I did now know the pseudonym that I was given for the Court. Nobody called my name, I don ot know if they called my pseudonym. I waited in the Court unit 11.25.
6. Then I came back to Level 17 and walked straight up to the Counter. There was a young man there and I asked him "at 11.15 is my court case time, I have a hearing and nobody called me"
7. Then the person at reception said "no 11.15 is not your time. 1015 is your time and you have missed it."
8. I thought the Court would let me know with a new date or that Immigration would let me know with a new date.
9. However I did not hear from them until I received a letter dated 12th September telling me that I did not have any current matter and also that my visa had expired after 13 August 2019.”
The applicant’s explanation for his non-attendance on the first return date was excusable on the basis that a number of factors combined to result in his late appearance at Court. Such failure to attend on time is not an uncommon occurrence where visa applicants are concerned, particularly for people who are unfamiliar with formal documentation and Court processes.
In the applicant’s affidavit, he then sought to justify why firstly he did not cause an application for reinstatement of his matter to be filed until 26 September 2019 – a period of one (1) year and two (2) months after the dismissal of his proceeding by order of the Registrar – and secondly, as to why such application for reinstatement was withdrawn. His affidavit relevantly provided as follows:
“10. Yesterday on 19 September 2019 I met with Mr Taylor solicitor to seek legal advice. He asked me for my file number but I did not know what it was as I did not have any documents from the Court.
11. He asked me to go to the Court and to ask the Registry for the file number so that he could give me advice.
12. On 20th September 2019, I attended at the Registry and asked for the file number and was given my file number on a piece of paper. A copy of that paper is annexed marked PS 1.
13. I then took the paper to Mr Taylor so he could check my file and provide advice.
14. Mr Taylor then located and provided me with a copy of the Orders of the Court of 16th July 2018. I did not receive a copy of these orders before.
15. Mr Taylor advised that the Court action had been struck our but that I could apply for it to be reinstated.
16. I took no steps to set aside the Registrar's Orders of 16th July 2018 for two reasons:
a. The first reason was due to my being unemployed, causing financial difficulties in paying the filing fees.
b. The second reason was because my girlfriend at the time lived in Sri Lanka and wanted me to return to Sri Lanka and not proceed with my case in Australia for a Protection Visa.
17. Notwithstanding my girlfriend's wishes, I decided to pursue my application and filed an Application in a Case on 26 September 2019, seeking the following orders:
i. That Order one of the Orders made by the Registrar on 16th July 2019, be set aside pursuant to the Federal Circuit Court Rules Rl 6.05.
ii. An extension of time b granted for making this Application if required.
iii. Such other orders including as to Costs as the Court deems appropriate.
18. However, in late 2019, having been again pressured by my girlfriend, I withdrew the Application in a Case despite my fears that I would be harmed if I returned to Sri Lanka.”
The applicant’s explanations in that regard were inexcusable. First, it is the obligation on the part of applicants who find themselves in the position of the applicant, after the dismissal of their proceeding, to act in a timely way to seek reinstatement by the filing of an application in a case to set aside the dismissal order. The timely filing of such an application is consonant with the need for there to be certainty regarding the status of filed proceedings which have been dismissed. The principle of finality is but one reason why an applicant should file an application as soon as is reasonably practicable after the dismissal of the proceeding. As was said by French CJ in AON Risk Services at [34]: [9]
[9] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
“[34]The House of Lords in Johnson v Gore Wood & Co (114) acknowledged the distinction between “Henderson v Henderson abuse of process” on the one hand, and cause of action estoppel and issue estoppel on the other. Referring to public interest considerations of the kind discussed earlier in these reasons, Lord Bingham of Cornhill said (115):
“The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.”
A broad merits-based judgment was required, taking account of public and private interests affected and focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it an issue which could and should have been raised earlier. As Lord Bingham said (116):
“As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”
A court faced with a late amendment seeking to raise new claims and the in terrorem prediction that a multiplicity of proceedings may follow if the amendment is not allowed, is entitled to have regard to the barriers to the implementation of suggestions of that kind.”
There is also the administrative need for court caseloads to be ascertainable and known from time to time. Access to Courts should not be determined on a whimsical basis, or upon considerations influenced by a party’s unrelated personal relationship with another, as was the case here. The applicant’s conduct was indicative of his treating access to the Court as a convenience. There are strong public policy grounds for discouraging such inappropriate behaviour. The Court finds that the delay in the filing of an application to set aside the order, and the subsequent withdrawal of such application, was inexcusable.
As to the delay on the part of the applicant in the bringing of the second application in a case for the setting aside of the Registrar’s order, such delay was inexcusable. The Court further finds that the applicant’s stated reason for his having decided to seek the indulgence of the Court to hear and determine the application to set aside the Registrar’s order was unconvincing. The only reason given for the bringing of the application was as set out in paragraph 19 of the applicant’s affidavit, which relevantly provided as follows:
“19. I early 2020, I broke up with my girlfriend and so I now wish to proceed with my Application as I fear returning to Sri Lanka.”
The applicant has given no reason why he delayed in the bringing of the application in a case for such a long period of time since early 2020. The Court finds that the applicant’s conduct was so egregious that the Court ought not, in the exercise of its discretion, and for the reasons advanced above, grant the application to set aside the order of the Registrar made on 16 July 2018
Notwithstanding the Court’s findings on the question of the applicant’s conduct in the bringing of the application in a case now before the Court, it is appropriate to consider whether the applicant would have had a reasonable chance of success based upon the grounds as set out in the Amended Application for Review.
Consideration of Decision of the Immigration Assessment Authority
At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary of the Department pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).
At [5] of its reasons, the Authority set out the applicant’s claims as follows:
· “He is a single Tamil Hindu male who was born in Colombo on 14 August 1993. He lived most of his life in [name of place omitted] in the Eastern Province of Sri Lanka. He makes no claims about his religion.
· During the war he had problems in [name of place omitted] with harassment and exploitation.
· He was regularly stopped at security checkpoints by the authorities and asked to pay bribes. He was detained at checkpoints two or three times because he forgot his National Identity Card (NIC).
· The Sri Lankan Army (SLA) would round the applicant up with other Tamil people who lived near the camp and require them to do work around the camp.
· During the war his father sometimes gave food and diesel to the Liberation Tigers of Tamil Eelam (LTTE).
· At the beginning of 2011 he became close friends with two young men, D and S, who were associated with the LTTE. He was not aware that they had been involved with the LTTE.
· In November 2011, D was taken by the CID (Criminal Investigation Department) officers, while they were talking at the side of the road. The same day he was released however he did not disclose the reason why he was detained.
· After this incident, the police visited his home and questioned him about his connections with D and S.
· He did not spend time with D and S in the following three to four months. In March or April 2012 he saw them by the side of the road and talked with them again. Two days later D and S were both taken by the CID.
· Two days after they had been taken, S called him to ‘come to the road’. When he got to the meeting place, two army officers stopped him, blindfolded him and took him to their camp. He was locked in a dark room and beaten. The army officers interrogated him about his personal links with LTTE and his connections with D and S who were LTTE members. He was questioned as to whether he was also with the LTTE. He told them he did not know they were LTTE. He was kept overnight and the next day the applicant was placed in the same cell as D and S. They told him they were LTTE. He was released the next day from custody but does not know why.
· D and S were released from detention soon after.
· Around June 2012, S told him that D had disappeared.
· Two days later, unknown men in plain clothes came to his home. He was scared and ran away and was in hiding for two days. The men continued to visit his parents' home.
· His parents advised him that it was no longer safe to stay in [name of place omitted] and suggested he go to [name of place omitted], 20 to 30 kilometres from [name of place omitted]. He registered and worked in [name of place omitted] with his father’s business acquaintance, however within ten days the police were looking for him in [name of place omitted] so he went into hiding in the jungle.
· His father arranged for him to leave Sri Lanka about ten days later.
· After he left Sri Lanka the authorities came to his parents' house, multiple times in one month, and questioned them about his whereabouts. His parents told them that they did not know where he was.
· If he is returned to Sri Lanka as a failed asylum seeker, he will be subject to serious harm including torture, significant physical harassment or even death at the hands of the CID, SLA or Sri Lankan Government.”
[names of places omitted]
At [7] and [8] of its reasons, the Authority duly recorded what constituted a person a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.
Ground 1 of the Amended Application for Review was a claim that the Authority’s failure to accept that the applicant was closely associated with LTTE members was legally unreasonable. It was submitted on behalf of the applicant that adverse findings made by the Authority at [14] of its reasons ought to have led the Authority to conclude that from the applicant’s view point, the disclosure of his association could have led to repercussions against him. The Authority’s reasons at [14] were as follows:
“[14] The applicant claims that his association with two LTTE members, D and S, from 2011 until 2012 will result in him being imputed to be an LTTE supporter. The applicant did not mention this association at all in the arrival interview so I have some concerns about the credibility of his claims in this regard. The applicant submitted that he was scared of disclosing this information to the Australian authorities in particular due to Australia’s close relationship to the Sri Lankan Government. I do not find this plausible particularly as he was willing to make other claims about the Sri Lankan Government in particular accusing SLA and police of extortion, harassment and discrimination. The applicant states that he met D and S in his neighbourhood in 2011 and that they were close friends who hung out all the time. At the SHEV interview the applicant was unable to provide their full names or any details about their employment status. I accept that the applicant may have known two young men called D and S but I do not accept that he was as closely associated with them as he claims.”
It is clear that the Authority was sceptical of the applicant’s evidence. It pointed to the fact that the applicant had failed to mention his claimed association with the alleged LTTE members named D and S at the time of his arrival interview in support of his claim that by reason of his association with them, he would be imputed as having LTTE connections. The Authority further noted that at the time of the SHEV interview, the applicant was unable to provide the full names of D and S. The Authority found that the applicant’s claim that he did not mention the association at the time of the arrival interview because he was scared of disclosing such information to the Australian authorities was inconsistent with his having criticised the Sri Lankan government by accusing the SLA and police of extortion, harassment and discrimination. The conclusions reached by the Authority were open on the evidence before it. As Thawley J said at [21] - [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:
“[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.
[22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.
[23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”
For an applicant to demonstrate legal unreasonableness, a high bar must be met. On the question as to whether something was legally unreasonable or not, Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] said as follows:
“[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
[42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] explained that:
“[10] In the joint judgment in Minister for Immigration and 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”
The Authority comprehensively considered the applicant’s claims that he had a well-founded fear of persecution should he be returned to Sri Lanka at [16] – [20] of its reasons, which were as follows:
“[16] The applicant claims that he remained of interest to the police after his release from detention. He claims that in or around June 2012 S told him that D was missing. Two days after he found out about this, plainclothes men came to his home. He was scared and ran away and was in hiding for two days. The men continued to visit his parents' home. His parents advised him that it was no longer safe to stay in [name of place omitted] and suggested they go to [name of place omitted], which is located 20 to 30 kilometres from [name of place omitted]. He registered and worked in [name of place omitted] with his father’s business acquaintance, however within ten days the police were looking for him in [name of place omitted] so he went into hiding in the jungle. He called his father and explained the situation so his father arranged for him to leave Sri Lanka about ten days later. After he left Sri Lanka the authorities came to his parents' house, multiple times in one month, and questioned them about his whereabouts. His parents said that they did not know where he was.
[17] I do not consider the applicant’s claim that he remained of interest the authorities after his release from detention to be credible. He did not mention that he was wanted by the police in his arrival interview. He does not explain why he was of interest to the police in June 2012after being interrogated and then released by the SLA in April 2012. He appears to have relocated to [name of place omitted] to work and not because he was in hiding. The fact that he registered with the village official in [name of place omitted] further supports this. When questioned about this in the SHEV interview he stated that he was not aware that the police would find him through his registration. I do not accept this. The applicant arranged to travel to Australia with other relatives. I do not consider that the applicant was of any interest to the authorities when he left the country or that he was fleeing the authorities when he left the country.
[18] The applicant claims that another factor which will result in him being imputed to be an LTTE supporter on his return, is the fact during the war his father assisted the LTTE by providing them with food, money or diesel whenever they asked for it but he was not an LTTE member. The applicant’s father and his family lived in [name of place omitted]. Country information states that the majority-Tamil populations of the areas controlled by the LTTE were required to interact with the LTTE as a matter of course5. This included providing them with voluntary and forced support. I accept that the applicant’s father may have provided material support to the LTTE from time to time during the war but I do not consider that there is anything in his or his father’s profile which suggests that he was suspected of supporting the LTTE at the conclusion of the war, based on what he did during the war. I do not therefore consider that the applicant will be imputed to be an LTTE supporter because of his association with his father.
[19] I note that in the applicant’s submission after the SHEV interview he claims that he had an uncle in the LTTE. He has not made this claim elsewhere and he has not provided any details about this uncle. I do not accept that the applicant has an uncle who as in the LTTE. I consider that if this was the case, and the applicant feared harm on this basis that he would have articulated this claim at the arrival interview, SHEV application or interview and that he would have provided further information. I do not consider that this claim is credible.
[20] The applicant has claimed that after his departure from Sri Lanka the authorities discovered weapons buried by the LTTE in the backyard of his family home, however he does not know any details as his family has not disclosed anything to him regarding the incident. The applicant and his family lodged a combined SHEV application. No-one in the applicant’s family was arrested as a result of the weapons cache although his mother was questioned. She claims that neighbours were detained and then released after paying money; the applicant’s father stated that he did not have any personal connections with the LTTE and had never been an LTTE member. Based on the information before me, I do not accept that the applicant’s father and other immediate family members were of interest to the Sri Lankan authorities because of any association with the LTTE or for any other reason after the applicant left Sri Lanka.”
[names of places omitted]
At [21] – [25] of its reasons, the Authority considered relevant country information which recorded improvements in the human rights situation in Sri Lanka post 2015. When summarising its consideration of both the applicant’s claims and the country information, the Authority at [26] – [27] said as follows:
“[26] Given the applicant’s claims and the above country information, I am satisfied that, although the applicant experienced harassment and was detained, questioned and mistreated by the Sri Lankan authorities in the past, the SLA have investigated the applicant for LTTE links based on his ethnicity and connections and he was released shortly after and never arrested, charged or forced to undertake rehabilitation as a result. In the SHEV interview the applicant confirmed that he has never been charged, brought before a court in Sri Lanka or sentenced. I am therefore satisfied that the Sri Lankan authorities did not suspect the applicant had any association with the LTTE. Given the above, I am also satisfied that Sri Lanka’s authorities did not ultimately consider the applicant to be an LTTE member or have links to the LTTE because of his ethnicity, his association with S and D, his father or other family members or his family members’ circumstances since he left Sri Lanka.
[27] I consider that the situation for Tamil people has improved significantly under the Sirisena Government. I also accept that the Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country and I accept that there are people who return to Sri Lanka who remain at risk of torture and other harm on the basis of their previous LTTE involvement, political activism and support and funding of separatist activity. I do not consider that the applicant has a political profile of a kind that would make him a person of interest to the Sri Lankan authorities on his return. I am also not satisfied that the applicant will face a real chance of harm from the Sri Lankan authorities due to his actual or perceived Tamil ethnicity, his links to S and D and family members or his past interactions with the Sri Lankan authorities.”
There is no merit to Ground 1 of the Amended Application for Review. The Authority appropriately considered all of the evidence before it, and all of the applicant’s claims both cumulatively and individually. The applicant essentially disagreed with the findings of the Authority, and sought an impermissible merits review of that decision.
As to Ground 2, this ground again seeks a merits review of the decision of the Authority. It is a complaint that because there was certain evidence before the Authority, the Authority ought to have made findings in favour of the applicant. There is no merit to such claim.
The Authority was not satisfied that the applicant would be regarded as having a profile of such significance so as to warrant any interest being taken in him by the authorities. The Authority specifically so found at [17] of its reasons based upon a sound analysis of the evidence before it. The Authority had examined the applicant’s claims about his association with D and S, finding at [15] of its reasons as follows:
“[15] The applicant claims that as a consequence his friendship with D and S, the police visited his home in November 2011 and questioned him about his connections with them. Later, around March or April 2012 he claims he was detained by the SLA for approximately two days along with D and S during which time he was beaten and questioned about his association with them and the LTTE. He told the SLA that he did not know they were LTTE. They were all released the next day. Country information indicates that during the post war period the SLA was involved in the regular harassment of young Tamils3. Tamils between the ages of eighteen and forty were required to register and report to the police station4. I accept that in 2012 the Eastern Province was highly militarised and the general Tamil population experienced harassment. I consider it credible, and accept, that the applicant, as a young Tamil male, may have been subject to monitoring and questioning on two occasions as he claims and mistreated and detained. I accept that D and S also may have been detained overnight by the authorities, as Tamils, beaten and released after their identity was established. However, given the applicant’s claim that he and D and S were released within two days and not arrested, prosecuted or referred for rehabilitation, I do not accept that, after second questioning, the applicant was considered by the authorities to be associated with the LTTE. Further, the applicant has never claimed that he took part in any activities in support of the LTTE.”
The Authority was entitled to find that the applicant’s claims lacked credibility. It did not err in the way in which it considered, and subsequently rejected, such claims. As was said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] – [47] per French, Sackville and Healy JJ:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
There is no merit to Ground 2 of the Amended Application for Review.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Applicant has failed to satisfy the Court that Order 3 of the Orders of the Registrar made on 16 July 2018 ought to be set aside pursuant to the provisions of r. 16.05(2)(a) of the Rules.
Having considered on an impressionistic basis that the Amended Application for Review was without merit, the Applicant’s Application in a Case filed on 31 March 2021 is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 31 August 2021
1 and AS-2 thereto.
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