Dmo18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1028
•14 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DMO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1028
File number(s): ADG 264 of 2018 Judgment of: JUDGE EGAN Date of judgment: 14 May 2021 Catchwords: MIGRATION – Application for Safe Haven Enterprise Visa – no merit to claims that the Authority had not given proper consideration to the applicant’s claims – no merit to the claim that the Authority ought to have conducted an interview with the applicant – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss 473CB, 473DC, 473DD. Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928.
Minister for Immigration and Border Protection v Pandey [2014] FCA 640.
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
CMA19 v Minister for Home Affairs [2020] FCA 736.
Mahon v Air New Zealand Ltd [1984] 3 All ER 201.
BCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 493.
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
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: 33 Date of last submission/s: 10 May 2021 Date of hearing: 10 May 2021 Place: Brisbane Counsel for the Applicant: Mr Jacobi Solicitor for the Applicant: Camatta Lempens Counsel for the First Respondent: Ms Veale Solicitor for the First Respondent: Australian Government Solicitors Second Respondent: Submitting appearance save as to costs ORDERS
ADG 264 of 2018 BETWEEN: DMO18
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:
14 MAY 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 Further Amended Application for Review filed on 11 March 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 28 October 2012. On 11 August 2016, the applicant applied for a Safe Haven Enterprise (Sub Class 790) Visa (SHEV).
On 3 November 2017, a delegate of the Minister refused to grant the visa. The decision of the delegate was referred to the Immigration Assessment Authority (‘the Authority’) for review.
Consideration of Applicant’s Claims
At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).
On 3 December 2017, the Authority received a submission from the applicant, the majority of which addressed aspects of the delegate’s decision and findings. The Authority recorded that it had had regard to such submissions.
The Authority, at [6] and [7] of its reasons, also recorded that it had been provided with two (2) additional sources of country information which had not been before the delegate. The first pre-dated the decision of the delegate by almost a year. The Authority did not consider that there were exceptional circumstances justifying its consideration of such information under s. 473DD of the Act. The Authority recorded that it did not consider that the provisions of s. 473DD(b) of the Act had been met. As to the other source of information, such information also pre-dated the decision of the delegate. The Authority again did not consider that there were exceptional circumstances justifying its consideration of such information.
At [8] of its reasons, the Authority recorded that it had decided to get new information, being a DFAT country information report on Sri Lanka dated 23 May 2018 which was recent and published after the delegate made his decision. The Authority recorded that there were exceptional circumstances justifying its consideration of such recent country information.
At [9] of its reasons, the Authority set out the applicant’s claims as follows:
· “He is a Sri Lankan Tamil of the Hindu faith from the Northern Province. He has a wife and three daughters who are living in Sri Lanka.
· From 1994 to 2006, he was a driver for the LTTE while living in Jaffna.
· In 2006, he was arrested, detained, beaten and tortured by the army on suspicion of storing LTTE weapons, and he was accused of working for the LTTE as a driver and being involved with the LTTE, which he denied. He was released with the assistance of his wife and the Grama Sevaka, local government representative, and told to return the next day. He was scared went into hiding for a month and then moved to Vavuniya.
· From 2006 to 2009 he transported goods into the Vanni to the LTTE administration.
· In around 2008-2009, the LTTE secretly hid weapons in a truck registered in his name, but driven by someone else. The truck was stopped by authorities who found the weapons.
· In March 2009, his brother-in-law was injured in a shelling attack and later died.
· After his brother-in-law died, the CID questioned and tortured him and questioned his wife about his brother-in-law who they accused of being part of the movement.
· He had to report to the CID for the next three days and was repeatedly questioned about his brother-in-law being an LTTE member. He was beaten badly while the CID tried to extract a confession from him. He was released each day on the condition he attend when required. His wife was also questioned by the CID but not harmed.
· One week later the CID came looking for him at his home, but he was not there.
· In 2012, he attempted to depart illegally and was arrested and detained by the authorities along with 40 other people on his boat. He attended court, and his wife and mother paid his bail. He later departed successfully by boat.
· Since leaving Sri Lanka the authorities regularly visit his family looking for him, and call his wife. They ask where he is, which country he is in and whether they can contact him. They have threatened his wife telling her they will arrest her if she cannot contact him.
· In March 2017, he was arrested in Australia in connection with the murder of a Sri Lankan man. The police discontinued the prosecution in March 2017, although he spent time in a high security prison due to false allegations made against him and two other men. The victim’s family have visited his wife in Sri Lanka and threatened to kill him if he returns to Sri Lanka. This incident has negatively impacted his mental health.
· He will be arrested, arbitrarily detained, tortured and possibly killed by the Sri Lankan authorities if returned to Sri Lanka because he is a Tamil, because he has been accused of being in the LTTE, because of his association to his brother-in-law, because he fled with outstanding charges for trying to depart Sri Lanka illegally, and because he sought asylum in a western country and the government will assume he has been criticising it. He will immediately be of interest to the authorities because he has been absent from the country for such a long time.”
Grounds of Review
On 5 July 2018, the applicant filed an Originating Application for Review of the decision of the Authority. At the hearing before the Court, the applicant relied upon a Further Amended Application for Review filed on 11 March 2021, the grounds of which were as follows:
“Failure to give proper, genuine and realistic consideration to the applicant’s claim
1 The IAA failed to consider the claim (or an element of the claim) made, by the applicant, by reason of which it failed to "deal with a claim raised by the evidence and the contentions before it" or failed to give “proper, genuine and realistic consideration" to a matter is was required to address and thereby did not conduct the review required by the Migration Act 1958 (Cth) ('the MA') which was a jurisdictional error.
Particulars
1.1 The applicant was falsely accused with two other men with the murder of a Sri Lankan citizen living in Australia. Charges were a month later dropped when his accuser was solely charged with the murder (and who was later convicted).
1.2 In his protection visa interview, the applicant claimed that the victim’s family and/or associates had travelled to his home in Sri Lanka and made a death threat against him to his wife (and engaged in other intimidating behaviour).
1.3 The applicant’s claim was that he did not know how the victim’s family and/or associates in Sri Lanka learned of his identity or address, though the applicant raised the possibility that someone in Australia told them. The applicant’s migration agent added that the charge and the applicant’s name were matters published in Sri Lankan newspapers, but did not say this was how they found out.
1.4 The delegate of the Minister addressed that claim finding that the victim’s family and/or associates were likely to have found out the applicant’s name, either through the media or because someone in Australia told them.
1.5 To the contrary, the IAA engaged with and resolved only that part of the applicant’s claim on the basis that there was not evidence of information about him being published in Sri Lankan media (to the effect that there was not a possibility that the victim’s family and/or associates could have learned the applicant’s identity and family’s address), and therefore reject the applicant’s claim that the victim’s family and/or associates found the applicant’s family and made a death threat against him.
1.6 That did not address or engage with the applicant’s claim and thereby the IAA failed to consider the applicant’s claim and hence failed to give “proper, genuine and realistic consideration” to his claim.
1.7 Those errors were material by reason that had the IAA considered his claim (as the delegate had) the IAA could have accepted that the events as claimed had occurred, which could not be said not to have given rise to the possibility of a different decision.
1.8In the alternative, if the respondent did determine the applicant’s claim (that the victim’s family and associates knew his identity by unknown means) its decision was unreasonable in that it lacked evident and intelligible justification because:
- the IAA’s finding that the applicant’s identity was not published in the media in Sri Lanka did not answer the substance of that claim;
- there were legislated duties and rights, namely s 8 of the Victims of Crime Act 20021 (SA), which provides in part that a victim has a right to be informed by Police of the name of the alleged offender upon request, which the IAA could be assumed to know and which provided a direct means by which the victim’s family could have learned of his identity.
- there was no rational basis upon which to conclude that generally retribution would not be sought once it was publicised in Australia that the applicant was no longer a suspect.
1.9That error was material by reason that had the IAA considered the effect of legislated obligations, to information, it may have accepted the applicant’s claim, which could not be said not to have the possibility of giving rise to a different decision.
Failure to exercise or consider the exercise the power to obtain new information
2 The IAA failed to exercise (or consider the exercise) its power to obtain new information from the applicant under s473DC of the MA or other submissions from the applicant in circumstances of making two findings which was unreasonable, and which was thereby a jurisdictional error.
Particulars
2.1 Paragraphs 1.1 and 1.2 are repeated.
2.2 The delegate of the Minister for Home Affairs accepted that claims made by the applicant namely:
2.2.1 The applicant’s claim that threats (as described in ground 1) had been made: CB212.
2.2.2 The applicant’s claim to have attempted to depart Sri Lanka twice in 2021 – to have been arrested on the first attempt and detained for two or three days, and released on bail and then successfully depart Sri Lanka before the court case was hear: CB: 212.
2.3 The applicant was prior to the IAA review provided with the Information Sheet and Practice Direction of the IAA entitled “What you need to know about the Immigration Assessment Authority” which said in answer to the question “Can I make a submission to the IAA?” that “You can provide a submission on – why you disagree with the department’s decision, and – any claim or matter you presented to the department that was not considered”, further stating that such a submission “should be no longer than 5 pages”.
2.4 The IAA departed from the positive findings of the Delegate finding that.
2.4.1 contrary to threats finding, and acknowledging that the finding was contrary to that of the delegate, the IAA did not accept that the victim’s family and/or associates had made threats against the applicant: CB: 276-277; 278.
2.4.2 contrary to the departure finding, and acknowledging that the finding was contrary to that of the delegate, the IAA did not accept that the applicant had been arrested, charged, or released on bail: CB: 275.
2.5 As to both the IAA failed to invite the applicant to make submissions notwithstanding what it had told him to do, and in relation to 2.4.2 the IAA did not exercise, or consider the exercise, of the discretion to invite information from the applicant in support of that claims under s 473Dc of the MA.
2.6 It was unreasonable, in the circumstances, for the IAA to reject the applicant’s claim in either respect without seeking submissions or further information about those aspects of his claim.
2.7Those errors were material, in that had the applicant been provided with an opportunity to give information to the IAA about the first and/or second contrary finding, that information could realistically have led to the IAA making a different finding, resulting in a different decision.”
Ground 1 of the Further Amended Application for Review was a claim that the Authority failed to give proper, genuine and realistic consideration to a matter it was required to address, and that such failure constituted jurisdictional error. There is no merit to such claim.
In the reasons of the delegate, under the heading “Death threats from family of murder victim”, the delegate said as follows:
“Death threats from family of murder victim
The applicant was charged with the murder of another Sri Lankan man while in the Australian community. The charges were subsequently withdrawn by the South Australian Police. The applicant claims that he was identified in the Sri Lankan media as one of the murderers. I have not been able to locate any media reports that name the applicant. The applicant claims that the family of the victim in Sri Lanka have made death threats against him.
The applicant’s agent provided a post interview submission with Sri Lankan detailing that the victim’s family had visited the applicant’s home and made death threats against him. The applicant claims this has been reported to the Sri Lankan Police.
I accept that the applicant was charged with murder and was subsequently eliminated from the investigation and charges withdrawn. I accept that the applicant has received threats via his family in Sri Lanka.”
[footnotes omitted]
At [24] – [26] inclusive of its reasons, the Authority, having considered the applicant’s claims and the findings of the delegate, said as follows:
“[24] I accept that in March 2017, the applicant was arrested in Australia in connection with the murder of a Sri Lankan man. The applicant has not given any documentation from the police or the prison to demonstrate that he was one of three men arrested and charged with murder, and that he spent time in a high security prison. There is a copy of a media release from the South Australia Police dated 29 March 2017 titled “UPDATE: Man charged with Penfield Gardens murder”, which states that following the arrest of this fourth man who was charged with the murder of [name omitted] and refused bail, police discontinued the prosecution of three other men who had earlier been arrested for that offence. Police confirmed they are satisfied they have been able to prove that allegations made against the three men were false. The media release does not name the applicant, nor does it give any other identifying information about the applicant. There is no mention of the victim or any accused coming from Sri Lanka. There is also an internal email from the department on file sent from a person in Cancellation Support to a number of addressees, including state police teams, with the subject heading: media articles of interest 31 March 2017. There is a table of information listing relevant media and persons of interest from the department of immigration’s caseload, which includes the applicant’s name and that of two others, who were accused of murder and the charges withdrawn, and a reference to a yahoo news items about the murder charges having been withdrawn. I note the delegate accepted this claim. While the applicant’s verbal evidence during his SHEV interview was not convincing in relation to the detail of this claim, he did however stress that being falsely accused of murder had affected him emotionally and mentally and has caused him constant worry, and questioning as to why this happened to him. I accept that being falsely accused of murder would have a significant impact on a person’s well-being. I am prepared to accept the applicant was charged with murder and that those charges were subsequently withdrawn.
[25] However, I have difficulty accepting that some months later the victim’s family visited his wife in Sri Lanka and threatened to kill him if he returned to Sri Lanka. The applicant has claimed that the murder charges were widely reported in Sri Lanka, and he has been advised that his name and address in Australia were published in a Sri Lankan newspaper. However, he has not provided any copies of any Sri Lankan media reporting these allegations and naming him. The delegate said he was not able to locate any media reports that name the applicant. The applicant also claimed that despite his innocence, the word spread very quickly in the community in Australia and in Sri Lanka. He said the justice system in Sri Lanka is different to Australia and because he spent time in prison while there was an investigation, this is enough evidence to indicate to some members of the Sri Lankan community that he is guilty. The applicant claimed that about a month before his interview in October 2017, family members of the murder victim (who is from Colombo according to the applicant), or members of the Muslim community of the victim, found out where the applicant’s family lives in Vavuniya, and drove there and threatened his wife and family because they said they had received information that the applicant was responsible for the victim’s death. His wife explained the charges were dropped and he was falsely accused, but they did not believe her and that if he returns he will be killed in Sri Lanka. Afterwards, persons in a similar car were seen driving past the family house on two occasions, which prompted his wife to complain to the police about the harassment and threats, but at the time of the interview, there had been no follow-up. The delegate accepted that the applicant’s family had received threats via his family in Sri Lanka. The applicant has not provided a copy of a police report. He said the police put it as an entry, but they did not give his wife a slip, it is Vavuniya police. The applicant said, he is a Hindu and the murder victim was Muslim, so this has raised religious issues. However, the applicant did not give any information to support his assertion, and I am not satisfied that it is.
[26] I accept that rumours may have circulated in the Sri Lankan community about the murder in March 2017. However, given it was reported in Australia that the South Australian police were satisfied the three persons arrested (but not named) were falsely accused, and the investigation against them discontinued, and given the absence of any copies of Sri Lankan media naming the applicant, I am not satisfied the victim’s family or members of the victim’s Muslim community, found the applicant’s family in Vavuniya, and threatened to kill him because they have information the applicant was responsible for the death of this person. I find the applicant has not received death threats from the family and / or community of the murder victim.”
[names omitted]
Such findings were made by the Authority in circumstances where the delegate had already found that the applicant would not be in any danger from the family of the murder victim should the applicant be returned to Sri Lanka. Under the heading “Assessment – Death threats from family of murder victim”, the delegate had found as follows: [1]
[1] Court Book (CB) p. 214.
“Assessment – Death threats from family of murder victim
The applicant claims that he has received death threats from the Sri Lankan family of a murder victim.
The applicant was charged with murder along with two other men by the South Australian Police on 4 March 2017. The charges were withdrawn by the South Australian Police on 29 March 2017.
The applicant claims that as a result of the media coverage of the murder, his name was released in Sri Lanka. I have not been able to locate a media report that names the applicant. The applicant claims that his wife made a police report concerning the threats.
I have considered if the reports of a murder in Australia involving Sri Lankan nationals would receive wide media coverage in Sri Lanka. I consider it very likely that such an event would gain significant media attention in Sri Lanka. The South Australian Courts suppressed the names of the accused to protect the investigation.
I consider it feasible that the applicant’s name may have be reported in Sri Lankan media at some stage. I also consider that it is likely that someone in Australia communicated the name of the applicant to the victim’s family.
The applicant claims that the victim was from Colombo, around two hours by car from where the applicant originates. The applicant also claims that the people who made the threats visited his house twice and have now stopped visiting since the police report was made.
I consider that the applicant’s home is not located near the family of the victim and that any threats have stopped since the Sri Lankan police became involved.
I do not accept the claim that the applicant is in danger from the family of the murder victim.”
It was conceded by Counsel for the first respondent that the Authority had made findings that differed from findings made by the delegate relating to threats having been made against the applicant via his family in Sri Lanka. It was not contended on behalf of the applicant that such different approach was based upon issues of credibility such as those with which the High Court dealt in ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 where at [17] Kiefel CJ, Bell, Gageler and Keane JJ said as follows:
“[17] Were some aspect of the referred applicant's appearance during the interview to end up being so glaringly undermining of the referred applicant's credibility as to lead the Authority to consider in advance of reasoning on the facts that the appearance of itself "would", as distinct from "might", be the reason or part of the reason for affirming the decision of the delegate31, the Authority would come under an obligation to explain that to the referred applicant and to invite the referred applicant to comment. The Authority would be able to discharge that obligation by inviting the applicant to comment orally in the interview itself or subsequently in writing. But occasions when the need to take such a course might arise would be rare, as the circumstances of the present case again illustrate. The Authority was evidently inclined to reject the appellant's account of his experience of persecution because the Authority found the appellant's account vague and lacking in detail and to have been given in a hesitant fashion. An interview by the Authority would have enabled the Authority to get new information from the appellant by raising these issues with him. If the effect of this new information was that it simply failed to allay the tentative concerns that the Authority already entertained about the appellant's credibility, the obligation to invite further comment would not be engaged. The new information would not be the reason, or part of the reason, for affirming the fast track reviewable decision. The reason would remain the unallayed concerns of the Authority in relation to the appellant's account of his personal circumstances.”
[footnotes omitted]
It was submitted on behalf of the applicant that the Authority had evaluated a claim which was different than that made by the applicant. The Court does not accept such submission. The Authority appropriately addressed the question of the applicant’s having been falsely accused of murder. It dealt in a logical and considered way with the different possibilities concerning whether or not the identity of the applicant, relative to the murder charges, might have become known in Sri Lanka, and more specifically, if his identity had become known, whether or not that would give rise to his having a well-founded fear of persecution from members of the murder victim’s family in the event of him being returned to Sri Lanka.
The Authority appropriately addressed all issues raised in Ground 1 of the applicant’s claims. The factual matrix considered by the Authority was such that it was open for the Authority to find that the applicant would not have a well-founded fear of persecution because of any LTTE involvement on his part, or because of any political activity after his departure from Sri Lanka. Those findings were based on the length of time which had elapsed since the applicant had suffered mistreatment and detention in 2006 and 2009, as well as upon relevant country information. In that regard, at [29] – [42] inclusive of its reasons, the Authority found as follows:
“[29]DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly of those associated with politically sensitive issues.
[30] I have accepted the applicant suffered severe physical mistreatment when detained and questioned by the army in 2006 and the CID in March 2009. While the country information includes credible reports of allegations of torture committed by Sri Lankan authorities, the information does not support a finding that there is a real chance a Tamil would be targeted.
[31]The UK Home Office was of the opinion in March 2017 that a person being of Tamil ethnicity would not in itself warrant international protection, and neither, in general, would a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have had a significant role in it, or if they are, or are perceived to be, active in post-conflict Tamil separatism and thus a threat to the state. Further, mere participation in diaspora activities, such as attending demonstrations, is not in itself evidence that a person will attract adverse attention on return to Sri Lanka. There is no evidence before me of the applicant attending or actively engaging in Tamil separatist or diaspora activities, and he did not have a significant role in the LTTE.
[32]Country information no longer supports that there is a real chance a Tamil male from the north or east will be perceived as LTTE by the Sri Lankan authorities and targeted for harm.
[33]The applicant left Sri Lanka more than five years ago. At the time, he had been living for more than three years in the community in his home area after having been briefly detained and mistreated by the CID in March 2009, in the last couple of months of the war. I have found that when the applicant departed Sri Lanka, he was no longer of any interest to the Sri Lankan authorities for reasons of his Tamil ethnicity, the fact that he lived in Jaffna and Vavuniya in the Northern Province during the war, and an imputed political opinion in connection with the former LTTE, and suspicions involving his brother in law. I find there is not a real chance the applicant will face any harm from Sri Lankan authorities if he returns for reasons of his Tamil ethnicity, having lived in Jaffna and Vavuniya, nor for an imputed political opinion in connection with his past involvement with the LTTE, suspicions involving his deceased brother-in-law, or perceived involvement with the former LTTE.
[34]While I have accepted the applicant was arrested and charged with murder in Australia in March 2017, the charges were dropped and the South Australian Police publicly stated that the three men arrested had been falsely accused and its investigation of them had ceased when another man was arrested for the murder. I have not accepted that the applicant’s family have been visited by family members of the murder victim or his Muslim community and his life has bene threatened if he returns to Sri Lanka. While the applicant claimed this matter has taken on a religious aspect, he did not explain why this is the case.
[35]DFAT reports there are practical challenges for returning refugees and failed asylum seekers, minimal reintegration assistance available, and it can be difficult to find suitable employment. While the government has reportedly decreased systematic surveillance of returnees, DFAT is aware of anecdotal evidence of regular visits and phone calls by the CID to failed asylum seekers in the north as recently as 2017. However, only 0.3 per cent of refugee returnees interviewed by the UNHCR in 2016 indicated that they had security concerns following their return.
[36] The evidence before me does not support a finding that there is a real chance a person will face harm for the reason that they are a Tamil asylum seeker. I find there is not a real chance of harm for the applicant in connection with being a failed Tamil asylum seeker returning from Australia after more than five years.
[37] The evidence indicates that the applicant will very likely experience a brief period of detention and questioning by Sri Lankan immigration and law enforcement officers at the airport. DFAT information is that the investigative process for those returning concentrates on confirming the persons’ identity and any outstanding criminal matters, including the existence of court orders and arrest warrants. There is no evidence before me that the applicant has any outstanding criminal matters, or arrest warrants, and I have not accepted that when the applicant departed Sri Lanka in October 2012, he had been released on bail in relation to a prior attempted illegal departure by sea. DFAT understands that returnees are not subject to mistreatment during processing at the airport.
[38] If charged with the offence for illegal departure, the airport police will process the applicant and he will have his photograph, fingerprints, and statement taken. Former LTTE members returning from abroad may be questioned about their activities. However, the applicant is not a former LTTE member, although he had involvement with the LTTE, like everyone from the north.
[39]Again, if charged, the applicant may spend 24 hours in police custody at the airport, or up to two days in an airport holding cell if a magistrate is not available because of a weekend or public holiday. If he pleads guilty he will be fined and free to go. If he pleads not guilty, he will likely be released on bail, as before, until the matter is resolved by the courts. The information before me is that the applicant was a passenger on the boat and not involved in people smuggling.
[40]According to country information, prison detainees have access to medical services, however, some prisons in Sri Lanka have deficient infrastructure, overcrowding, insufficient ventilation and extreme heat. I accept that if the applicant were charged with an offence for illegal departure, there is a possibility he would be detained in these conditions for a couple of days if a magistrate is unavailable.
[41]The evidence before me does not indicate that the processes and penalties imposed as a consequence of the I&E Act - including the likely fine and brief detention - are discriminatory on their face or in their application. I am not satisfied they amount to persecution.
[42] The applicant does not have a well-founded fear of persecution”
[footnotes omitted]
Even if there had been “an informational gap”, something which Counsel for the applicant did not press, that does not necessarily mean that the Authority was not entitled to differ from its view of the facts as compared with the findings of the delegate. As was said in ABT17 at [22] per Kieffel CJ, Bell, Gageler and Keane JJ:
“[22] The mere existence of an informational gap will not necessarily result in the Authority being "disadvantaged in comparison with the delegate". That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.”
[footnotes omitted]
The alternative claim in Ground 1 based upon an assertion of legal unreasonableness fails for the same reasons as set out above. The decision of the Authority could not be considered as arbitrary, capricious, without common sense or unjust. As was said by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42]:
“[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?”
As to Ground 2 of the Further Amended Application for Review, such ground is a claim that the Authority ought to have exercised its power under s. 473DC of the Act to get new information from the applicant about some of the applicant’s claims which, though accepted by the delegate, were not accepted by the Authority. The two claims which were accepted by the delegate but rejected, either outright or in part, by the Authority, were respectively:
(a)That murder charges laid against the applicant had been withdrawn but that notwithstanding such withdrawal, the applicant had received threats via his family in Sri Lanka; and
(b)That the applicant had attempted to depart Sri Lanka in 2012 but that he had been arrested after his vessel had on that occasion been intercepted.
Section 473DC of the Act relevantly provided as follows:
“Getting new information”
(1) Subject to this part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way”
It was submitted on behalf of the applicant that the Authority ought to have exercised its s. 473DC powers because it was minded to make different findings to those of the delegate, on important issues, in circumstances where the applicant could not have anticipated that the Authority would do so, and further where the applicant was not invited to comment upon such issues before the Authority had handed down its decision. It was submitted that by paragraph 20 of the Practice Direction issued by the Authority under the hand of the President on 6 February 2017, an applicant was practically permitted to only make written submissions to the Authority about decisions of the delegate with which the applicant disagreed. Paragraph 20 of the Practice Direction provided as follows:
“Submissions and new information
20.For the purposes of the review, you may provide a written submission on the following:
•Why you disagree with the decision of the Department
•Any claim or matter that you presented to the Department that was overlooked”
The effect of the applicant’s submission was that it was legally unreasonable for the Authority to depart from positive findings made in the applicant’s favour by a delegate, and thereafter make adverse findings against the applicant without first providing the applicant with an opportunity to address such issues.
The applicant relied upon the decision of the Full Court of the Federal Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40] – [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, where it was said as follows:
“[40]More than once it has been said that the proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made. As the Tribunal recorded in its reasons in this matter, however, that does not mean that it is useful to speak in terms of onus of proof. And although there is no joinder of issues, the Act assumes that issues can be identified as arising in relation to the decision under review. While those issues may extend to any and every aspect of an applicant's claim to a protection visa, they need not. If it had been intended that the Tribunal should consider afresh, in every case, all possible issues presented by an applicant's claim, it would not be apt for the Act to describe the Tribunal's task as conducting a "review", and it would not be apt to speak, as the Act does, of the issues that arise in relation to the decision under review.
[41]The appellant's complaint in the present matter can be expressed in different ways. It could be described as being that the Tribunal acted upon unstated assumptions about the nature of Iranian society, when it decided that three aspects of his account were implausible. So, to take one of the three critical issues, when the Tribunal concluded (as it did) that it was implausible that what was said in a conversation between friends over coffee would come to the attention of a fellow member of the appellant's crew and thus be conveyed to the ship's captain, the Tribunal assumed that matters of religious interest would not ordinarily be the subject of gossip in a town in such a way as to come to the attention of a fellow crew member. The appellant says that he had no notice that the validity or content of the cultural and other assumptions that underpinned his account were in issue.
[42]But closer examination reveals that the appellant's complaint is more deep-seated than a complaint about the making of unstated cultural assumptions. It is that he was not on notice that his account of how his ship's captain came to know of his interest in Christianity, and his account of the captain's reaction to that knowledge, were issues arising in relation to the decision under review.
[43]The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.
Conclusion: entitlement to relief
[44]The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.”
[footnotes omitted]
In CMA19 v Minister for Home Affairs [2020] FCA 736, Murphy J at [86] said as follows:
“[86] In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) the High Court considered the obligations of a tribunal reviewing a delegate’s decision. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ explained as follows (at [35]):
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.
Thus, where a delegate makes a finding in favour of the applicant, it is likely to constitute a denial of procedural fairness if a reviewing tribunal departs from that finding without informing the applicant that it might consider doing so: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [10] (Tracey, Mortimer and Charlesworth JJ).”
It was submitted that because the Authority was inclined to make different findings to those of the delegate on questions which were arguably dispositive of the question for determination by the Authority, the Authority was obliged to firstly afford procedural fairness to the applicant by advising the applicant of the possibility that it would make different findings to those of the delegate, and secondly, giving to the applicant an opportunity to make submissions about such possibility. Such practice has long been entrenched at common law. In Mahon v Air New Zealand Ltd [1984] 3 All ER 201 at 820 – 821, the Privy Council said as follows:
“The rules of natural justice that are germane to this appeal can, in their Lordships' view, be reduced to those two that were referred to by the Court of Appeal of England in Reg. v. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 Q.B. 456, 488, 490, which was dealing with the exercise of an investigative jurisdiction, though one of a different kind from that which was being undertaken by the judge inquiring into the Mt. Erebus disaster. The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.
The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.
The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result.
Any determination whether the judge's finding of fact in paragraph 377 of the Royal Commission Report was flawed by a combination of failures to observe these two rules calls for some examination by their Lordships of what evidence there was at the inquiry of the alleged conspiracy and to what extent allegations of conspiracy were put to members of the management identified in the report as being parties to it. Since this task has been undertaken in the judgments of the Court of Appeal, to which reference may be made, their Lordships will endeavour to avoid mere repetition of facts that are to be found stated in these judgments.”
The Court does not accept the submissions made on behalf of the applicant. The facts of the present matter were substantially different from those in ABT17. The applicant was represented both before the delegate and prior to the handing down of the decision by the Authority. [2] The Court relies upon what was said by Beach J in BCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 493 at [27] – [30] as follows:
“[27] Reference was made to ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407, which discussed the circumstances in which it may be considered legally unreasonable for the Authority to make findings which differed from those of the delegate, without giving the applicant an opportunity to provide further information pursuant to s 473DC of the Act. An appeal was allowed in circumstances where the Authority had made findings about the credibility of an applicant by reference to the manner in which it considered he had given his evidence, after listening to an audio recording of his interview with the delegate. The Authority had not accepted that the applicant was credible, notwithstanding that his account had generally been accepted as plausible by the delegate. The Authority described the applicant as having sounded vague and hesitant, as being unable to expand in any detail on a number of his written claims, and considered that his evidence was generally lacking in detail. It was in that context that the Court found that it was legally unreasonable for the Authority not to have invited the applicant to an interview.
[28]I do not need to discuss the relevant principles. The case before me is far removed from the scenario discussed in ABT17 (see the plurality’s discussion at [15] to [18] and [25]).
[29]For example, this is not a case where the different findings in relation to the Taliban letter made by the delegate and the Authority would require, as a component of conducting the review reasonably, that the Authority consider inviting the appellant to an interview, if only because even though the delegate appeared to accept that the appellant had received the letter, that did not lead to a finding that there was a real risk of harm.
[30]Accordingly, in my view there is nothing about the circumstances of the present case that would indicate that the Authority acted legally unreasonably by making findings that were different from those of the delegate without inviting the appellant to attend an interview or provide further information. Moreover, it must also be recalled that the appellant was legally represented at the hearing below and no issue was then raised about any such divergence between the Authority and the delegate on factual questions.”
[2] CB pp. 165 – 168, 182 – 204 and 243 – 258.
The Court finds that the Authority did not fail to afford procedural fairness to the applicant. Alternatively, the Court finds that even if such failure on the part of the Authority was a procedural error, such failure by the Authority could not realistically have resulted in the Authority arriving at a different decision. The Authority had carefully considered the applicant’s claims and had found that there was not a real chance that he would suffer serious harm if returned to Sri Lanka.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
Like the delegate, the Authority did not accept that the applicant had any well-founded fear of persecution. It also found that the applicant would not suffer a real risk of significant harm if returned to Sri Lanka. The Authority did not err in arriving at such decisions after having closely considered all of the applicant’s claims, and all of the documentation provided to it in support of such claims.
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] 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 Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 14 May 2021
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