DMV22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 689
•14 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DMV22 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 689
File number(s): PEG 213 of 2022 Judgment of: JUDGE LUCEV Date of judgment: 14 May 2025 Catchwords: MIGRATION – Judicial Review – Administrative Appeals Tribunal decision – citizen of Sri Lanka – refusal of protection visa – whether failure to analyse or consider issue of significant harm – whether final decision contrary to the evidence – whether failure to properly evaluate the evidence – whether too much weight given to prior Australian criminal record – whether failure to consider relevant legislative provisions – whether decision contrary to expectations of the Australian community and lawmakers – whether error in findings as to information provided to support claims made – whether error made as to accessibility of video material provided by the applicant – whether error made as to availability of police complaint from Sri Lanka – whether error made in assessment of credibility – whether unreasonableness in relying on findings concerning false documents in earlier protection visa application by the applicant – whether error in relation to assessment of criteria concerning serious crime – obligations concerning consideration of a valid application for protection and assessment of refugee and complementary protection criteria before considering any other criteria - whether jurisdictional error.
PRACTICE AND PROCEDURE – Adjournment – adjournment of first Court hearing – unsuccessful in obtaining pro bono assistance – self-represented – applicant not appreciating the necessity to make submissions at hearing – no written submissions filed – no sensible or considered oral submissions
WORDS AND PHRASES – “must”
Legislation: Disability Discrimination Act 1992 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190
Judiciary Act 1903 (Cth), ss 55B and 55C
Migration Act 1958 (Cth) ss 5, 5M, 36, 36A, 39A, 56, 256, 424AA, 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.04
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth), Explanatory Memorandum
Amended Code of Criminal Procedure Act, No.15 of 1979 (Sri Lanka) s 444
Civil Procedure Code (Sri Lanka) s 440A
Criminal Procedure Code (No. 15 of 1979) (Sri Lanka)
Cases cited: Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1
ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
ASI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1235
BKT17 v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2023] FCA 384
BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41
CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089
CUS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293; (2022) 369 FLR 305
CXS18 v Minister for Home Affairs [2020] FCAFC 18
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153
FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293
Kosovich v Mancini (1982) 31 SASR 272
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; (1986) 10 ALN N109
Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11
Myers v Myers [1969] WAR 19
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
MZZZL v Minister for Immigration & Anor [2014] FCCA 1309
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Nelson v The Queen [2020] VSCA 219
Pitrau v Barrick Minig Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208; (20120 64 AILR 101-563
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350
WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188
Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476
Division: Division 2 General Federal Law Number of paragraphs: 121 Date of last submission/s: 20 November 2023 Date of hearing: 21 June and 20 November 2023 Place: Perth Applicant: Appeared in person Counsel for the First Respondent: Mr N Swan Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 213 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DMV22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
14 MAY 2025
THE COURT ORDERS THAT:
1.The originating application lodged on 2 November 2022 and accepted for filing on 4 November 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application for judicial review (“Judicial Review Application”) by the applicant, DMV22, accepted for filing on 4 November 2022 pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 28 September 2022. The Tribunal Decision affirmed a decision of the delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minster for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) not to grant DMV22 a Protection (subclass 866 visa) (“Protection Visa”).
The materials before the Court in these proceedings include the following:
(a)the originating application lodged on 2 November 2022 and accepted for filing on 4 November 2022;
(b)the unsigned affidavit of DMV22 accepted for filing on 4 November 2022, annexing the Tribunal Decision;
(c) the Tribunal Decision (which runs to 45 pages and 235 paragraphs);
(d) the Minister’s Response filed on 18 November 2022;
(e)the Minister’s Outline of Submissions filed on 7 June 2023 (“Minister’s First Outline of Submissions”);
(f)DMV22’s Outlines of Submissions filed on 21 August and 26 September 2023 (“August 2023 Submissions” and “September 2023 Submissions” respectively);
(g)the Minister’s Outline of Submissions filed on 29 September 2023 (“Minister’s Second Outline of Submissions”); and
(h)the Court Book (“CB”) which was marked as Exhibit 1 in the proceedings, and the Supplementary Court Book which was marked as Exhibit 2 (“SCB”). The Tribunal Decision appears at CB 343-387.
References to statutory provisions in these Reasons for Judgment are, unless otherwise indicated, references to the statutory provisions of the Migration Act, and to the provisions thereof as they were at the time of the Authority Decision.
BACKGROUND
The background to this matter prior to the Tribunal Decision is that DMV22:
(a)is a citizen of Sri Lanka: CB 20;
(b)applied for the Protection Visa on 11 January 2022: CB 12-44;
(c)attended a Tribunal hearing on 4 May 2022 (“First Tribunal Hearing”) to give evidence and present arguments CB 121-122 and 132;
(d)attended a further hearing before the Tribunal on 7 July 2022 (“Second Tribunal Hearing”): CB 258-263;
(e)attended a subsequent hearing before the Tribunal on 18 July 2022 (“Third Tribunal Hearing”): CB 256-266 and 313-315, and at each hearing:
(i)the evidence was provided using audio-visual technology between the Tribunal’s Melbourne facilities and the Christmas Island Immigration Detention Centre facilities;
(ii)an interpreter was present to assist DMV22, save for the First Tribunal Hearing; and
(iii)DMV22 represented himself: CB 132-134, 261-263 and 313-315.
TRIBUNAL DECISION
In the Tribunal Decision, the Tribunal:
(a)summarised the background to DMV22’s Protection Visa application: CB 345 at [15]-[16];
(b)outlined the time DMV22 had spent in Australia, including past visa applications and claims advanced by him in the course of making those, as well as the evidence and claims made in support of the present Protection Visa application: CB 346-359 at [17]-[93];
(c)found that DMV22 was not credible and had contrived his claims for protection: CB 371 at [152], and provided numerous reasons for having reached that conclusion, including that:
(i)DMV22 had previously applied for a Protection Visa and had then relied on different claims for protection. DMV22 admitted that those earlier claims were false and were accompanied by fake and fraudulent materials, and had also expressed a motivation to remain in Australia for familial reasons, which raised a concern as to whether the present claims were similarly deceitful: CB 363 at [113];
(ii)there were discrepancies in DMV22’s initial written claims, and then later written and oral evidence, about a murder he had allegedly witnessed: CB 364 at [118], and DMV22’s oral evidence did not reflect the details of a report of the alleged murder that DMV22 had submitted: CB 365 at [119];
(iii)DMV22 was unable to produce a copy of a police report (or First Incident Report) that his family had allegedly made: CB 365-366 at [122]-[127];
(iv)the Tribunal was not convinced that purported CCTV evidence that DMV22 provided had not been staged: CB 366-369 at [128]-[139];
(v)the Tribunal was not convinced that threats purportedly made against DMV22 were genuine: CB 369 at [140]-[142]; and
(vi)the circumstances in which DMV22 claimed to have disclosed his intention to inform about the murder were unconvincing and implausible, and there was no apparent reason for him to have suddenly had a “change of heart”, more than 15 years later, leading to him wishing to report the incident: CB 369-370 at [143]-[147],
(d)did not accept that DMV22 was involved as a witness to a killing in or about 2004: CB 371 at [153], and did not accept any of DMV22’s claims connected to or arising from this alleged incident: CB 371-372 at [154]-[163];
(e)accepted that DMV22 would face personal, health and economic challenges in Sri Lanka, however, found that he would not face a real chance of severe economic hardship, be denied basic services or the capacity to earn a livelihood: CB 378 at [185]. The Tribunal was not satisfied that there was a real risk of significant harm on account of the political and economic circumstances in Sri Lanka: CB 379 at [187];
(f) did not accept there to be a real risk of significant harm in Sri Lanka on account of:
(i)DMV22’s past experience with the Liberation Tigers of Tamil Eelam (“LTTE”): CB 379-380 at [191];
(ii)the 2019 Easter Bombings: CB 380 at [193]; or
(iii)DMV22’s criminal record in Australia: CB 381-383 at [203]-[208];
(g) did not accept that harm to DMV22 arising from being separated from his child, which was self-inflicted, amounted to significant harm, for the purposes of s 36(2)(aa): CB 384 at [215] and 385-386 at [221]; and
(h) was not satisfied that DMV22 met the requirements of ss 36(2)(a) or (aa) and affirmed the Delegate’s Decision: CB 387 [228]-[235].
ADJOURNMENT
Prior to the first day of hearing by the Court on 21 June 2023 it appears that the only orders made by the Court were consent orders made by a Registrar of the Court in Chambers in Melbourne on 22 November 2022 (“Registrar’s Orders”) as follows:
1. The matter be listed for final hearing on a date to be advised.
2.No later than two weeks from the date of these orders, the first respondent file one copy of a bundle of relevant documents (court book) in electronic form and for that purpose, the court book:
2.1 be in portable document format (pdf);
2.2 be capable of being searchable for specified text;
2.3 have an index and be paginated;
2.4 have each entry in the index bookmarked; and
2.5 be set so that when opened:
2.5.1 it displays at 100% zoom; and
2.5.2 the bookmarks menu is displayed.
3.No later than two weeks from the date of these orders, the first respondent serve:
3.1.one copy of the court book in electronic form, where the applicant has provided an email address for service; and
3.2. one copy of the court book in paper form.
4.If the Court requests that the first respondent file a copy of the court book in paper form, one such copy must be filed no earlier than eight weeks, and no later than six weeks, prior to the hearing.
5. The applicant file and serve the following at least 28 days before the hearing:
5.1 written submissions;
5.2any amended application with proper particulars of the grounds of the application; and
5.3 any additional evidence on which the applicant seeks to rely.
6.The first respondent file and serve the following at least 14 days before the hearing:
6.1 written submissions; and
6.2 any additional evidence on which the first respondent seeks to rely.
7.Where the applicant is self-represented, the first respondent file and serve, at least 7 days before the hearing, an affidavit of service of:
7.1 the court book;
7.2 the first respondent’s written submissions; and
7.3 any additional evidence filed by the first respondent.
8.The parties have liberty to apply to vary these orders by email to [email protected].
DMV22 did not file written submissions pursuant to the Registrar’s Orders.
The Court began hearing this matter on 21 June 2023. At that hearing DMV22 submitted that:
(a)his sister (who he said was a lawyer in Sri Lanka) had completed the originating application; and
(b)he did not know he would be asked to speak to the Judicial Review Application and had not made any preparations to make submissions.
The Court took what was said as raising a question as to whether the hearing of the matter ought to be adjourned.
Having heard from Counsel for the Minister the Court then made the following orders (“June 2023 Orders”):
1.The hearing of the matter be adjourned to a date to be fixed to be advised to the parties by Chambers.
2.The Applicant file and serve written submissions in support of the grounds of his originating application by 21 August 2023.
3.The First Respondent file and serve any written submissions in reply by 7 September 2023.
4.The costs of today be reserved.
5.Reasons for Judgment in relation to these orders be provided together with Reasons for Judgment in relation to the originating application.
The Court’s Reasons for Judgment in relation to the June 2023 Orders follow (limited to Order 1 as the remaining orders are programming or administrative orders).
In considering whether to adjourn the hearing the Court had regard the objects of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) read together with the overarching purpose of the civil practice and procedure provisions, particularly in s 190 of the FCFCOA Act and r 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The Court has also had regard to the observations of the Federal Court in BKT17 v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2023] FCA 384 (“BKT17”) where:
(a)at [30] per Feutrill J the Federal Court observed that “efficiency is intended to serve the administration of justice and must not come at the cost of ensuring a fair hearing”; and
(b) at [31] per Feutrill J the Federal Court observed that:
… the primary judge's reasons record that a registrar of the Circuit Court made orders providing the appellants with an opportunity to file an amended application, affidavit evidence and submissions, but no such documents were filed. The reasons do not indicate to what extent, if at all, these orders were made after an explanation of the process had been provided to the appellants or if the orders were made administratively without explanation. However, I make the observation, that orders that make provision for amending applications and filing submissions and affidavits where a party is a litigant-in-person and for whom English is not his or her first language may not remove the disadvantage of self-representation if no explanation of the process is provided to that litigant in his or her own language before the time for compliance with such orders expires or an oral hearing takes place…
(c) at [33] per Feutrill J the Federal Court observed that:
The failure of the appellants to avail themselves of the opportunity to amend and file written submissions and affidavits taken together with the oral submissions they made were powerful indications that neither understood the nature of judicial review or what they were required to do to identify and particularise grounds of review in a form that would permit the primary judge to understand the true nature of the complaint that they made about the process of the Tribunal’s review…
Ultimately, the Court retains a broad discretion in relation to whether or not it adjourns a hearing: Myers v Myers [1969] WAR 19 at 21 per Jackson J; FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293 at [15] per Judge Given; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev.
The Court observes that:
(a)DMV22 made submissions without the need for an interpreter to assist him, and therefore did not suffer one of the disadvantages adverted to in BTK17;
(b)DMV22 did, however, suffer from another disadvantage, namely that of being in immigration detention. DMV22 was in immigration detention at the time of the hearing on 21 June 2023. It is not apparent what, if any, assistance he received for the purposes of s 256 (as to the nature of the assistance that the Federal Court and this Court have considered might be provided under s 256 see CUS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293; (2022) 369 FLR 305 at [22]-[36] per Judge Lucev (and the cases there cited)); and
(c)DMV22 is nevertheless self-represented and does not have a lawyer to represent him (that is a lawyer entitled to practice and appear in this Court: Judiciary Act 1903 (Cth), ss 55B and 55C), and that is a matter to be taken into consideration when exercising the discretion as to whether to grant an adjournment: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J, but so too is the fact that there is no right to legal representation in judicial review migration proceedings in this Court: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J; Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [32]-[36] per Judge Lucev.
(d)DMV22 said that he had endeavoured to obtain pro-bono legal assistance but evidently no such assistance was able to be obtained;
(e)DMV22 may be able to obtain some limited “assistance” (and it goes no higher that) from his sister who he told the Court was a lawyer in Sri Lanka;
(f)it is not apparent that DMV22 was told by the Registrar upon the making of the Registrar’s Orders that at the hearing (on a date then to be advised) referred to in Order 1 of the Registrar’s Orders he would be expected to put his case to the Court so he may not have been expecting to have to do so. The Court notes however that DMV22 failed to file written submissions in accordance with the Registrar’s Orders;
(g)it was possible to relist the matter within a matter of months without disadvantaging other parties in the hearing list of the Court as presently constituted; and
(h)the Court might be assisted by written submissions being filed by DMV22 and from oral submissions on those written submissions.
Having regard to the broad scope of the discretion exercisable by the Court when considering whether to adjourn proceedings, and having weighed the matters observed in the previous paragraph, the Court determined that it would adjourn the proceedings, and an order was made accordingly in the June 2023 Orders.
FURTHER PROCEDURAL ORDERS
Following the making of the June 2023 Orders further procedural orders extending the time for the filing of submissions were made on 31 August and 12 September 2023.
GROUNDS AND FINAL ORDERS SOUGHT
The development of the grounds
Like Topsy in Harriet Beecher-Stowe’s novel Uncle Tom’s Cabin the grounds of the Judicial Review Application just “grow’d”: H Beecher-Stowe, Uncle Tom’s Cabin (Penguin Books, Harmondsworth, 1981 (1852)), p 356, in the course of DMV22 filing the August 2023 Submissions and September 2023 Submissions. Their growth is traced below.
Grounds – Judicial Review Application as filed
DMV22’s grounds as contained in the Judicial Review Application as filed on 4 November 2022 are as follows:
1.The applicant contends that AAT has failed to analyse the term ‘Significant harm’ which is in the subsection 36(2A) of the Migration Act 1958 and the final decision is contrary to the evidence led and the documents marked at the inquiry.
2.The applicant contends that AAT has not properly evaluate the evidence of the applicant and had given too much weight to his past Criminal records which is not fallen under the subsections 36(1B) and 36(1C) of the Migration Act 1958.
3.The applicant contends that Minister for Immigration, Citizenship and Multicultural Affairs has failed to consider some vital provisions such as 39A of the Immigration act of 1958 and it is against the expectation of the Australian Community and law makers.
Additional Grounds – August 2023 Submissions
In his August 2023 Submissions under the heading “Grounds of Appeal” DMV22 submitted that:
01.In the DECISION RECORD dated 28th of September 2022, the Tribunal was erred in Para No.71 stating that the Applicant had not provided any further information and detail in relation to his claims in response to the Section 56 request made on 28th January 2022 [Ground 4].
…
02.The Tribunal has erred in Para No. 68 stating that the Tribunal has sent a letter on 3rd of February 2022 (as per the Sec 56 of the Migration Act) and stating further that the Applicant failed to provide the video files in an ac[c]essible way [Ground 5].
…
03.In the DECISION RECORD dated 28th of September 2022, the Tribunal has erred in Para No. 124 stating that the Applicant was unable to provide a copy of the Police Complaint (or First Incident Report copy). According to the Srilankan Law, Section 444(1) Amended Code of Criminal Procedure Act 1979 the Accused person is entitled to copy of First Information not the “Complainant”. But according to the Civil Procedure Code Section 440(a)(1) has provide the opportunity to obtain a copy of a Police complaint by requsting through an Attorney-at-Law or a law firm stating that is is necessary for court action. Accordingly on 27th of January 2022 made a request through a law firm. But the Sri lankan Police was refuse to issue the copy of Police complaint as the investigation was still going and there is no case filed in the court with regard to this case. Therefore the Applicant was only able to submit the Receipt of the Police Complaint [Ground 6].
As indicated above the Court will treat the above additional grounds of review as grounds 4, 5 and 6 of the Judicial Review Application.
Further Additional Grounds – September 2023 Submissions
In the September 2023 Submissions under the heading “C. Grounds of Appeal” DMV22 further submitted that:
(a)The Tribunal had erred in its assessment of DMV22’s credibility [Ground 7];
(b)the Authority or Minister has not properly interpreted “significant harm” under s 36 [Ground 1];
(c)DMV22 has not done any “serious crime” under s 36(1C) and has satisfied both the other criteria in subsections 36(1B) and (1C) [Ground 8];
(d)the Minister had a discretion under s 36A(1)(b), in consideration of s 36(1C), regarding a protection visa application made under s 36(2)(aa) [Ground 9]; and
(e)the Authority has erred by giving too much weight to the evidence supporting the primary consideration of the protection of the Australian community [Ground 3].
As indicated above the Court will treat three of the grounds of review as further additional grounds, being grounds 7, 8 and 9 of the Judicial Review Application, and two of the grounds as repeating grounds 1 and 3 of the Judicial Review Application as originally filed on 4 November 2022.
References to the Minister
Although a number of the above grounds (and the submissions in support thereof) refer to errors by the Minister the Court has treated these as allegations of error by the Tribunal, as it is only in respect of the Tribunal that the Court has jurisdiction to provide prerogative relief in respect of jurisdictional error: ss 474 and 476.
FINAL ORDERS SOUGHT
The final orders sought by DMV22 are for an:
(a)order that the Tribunal Decision be quashed; and
(b)injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making a future decision or taking the other action the subject of the proceedings.
CONSIDERATION
General observations
Before considering the grounds individually it is appropriate to make some general observations about the task that the Court undertakes when considering a judicial review application under the Migration Act.
The Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error, any error having to be material to be jurisdictional: ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The Court must bear in mind that:
(a)it ought not adopt an approach to the Tribunal Decision which scrutinizes the Tribunal Decision over-zealously in search of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [35] per Gummow ACJ and Kiefel J; and
(b)it must read the Tribunal Decision fairly and as a whole: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“Applicant WAEE”) at [47] per French, Sackville and Hely JJ; BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 at [49] per Rangiah, White and O’Callaghan JJ; WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188 at [55] per Barker J;
(c)the Tribunal’s fact-finding is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and that the weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ;
(d)in relation to country information the weight to be placed upon it is, generally speaking, a matter for the Tribunal to determine: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11]-[14] per Gray, Tamberlin and Lander JJ; CXS18 v Minister for Home Affairs [2020] FCAFC 18 (“CXS18”) at [37] per McKerracher, White and Colvin JJ;
(e)disagreement, even if emphatic, with the Tribunal’s factual findings or the weight the Tribunal has given to evidence, may not be a basis upon which to find jurisdictional error on the basis of illogicality, irrationality or unreasonableness: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 (“SZJSS”) at [34] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Ground 1
Ground 1 is as follows:
The applicant contends that AAT has failed to analyse the term ‘Significant harm’ which is in the subsection 36(2A) of the Migration Act 1958 and the final decision is contrary to the evidence led and the documents marked at the inquiry.
DMV22’s submissions
In relation to ground 1 DMV22 submitted that:
(a)he has satisfied the criteria under s 36(2)(aa), according to which the Minister has to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country, there is a real risk that the non-citizen will suffer significant harm, and “significant harm” means harm of a kind mentioned in s 36(2A);
(b)the Minister has not considered the ample evidence submitted by DMV22 to satisfy the Minister that in any case if he is being removed from Australia to Sri Lanka his life would be “arbitrary deprived” or may be subjected to degrading treatment or punishment;
(c)he did not commit any serious crime (a serious Australian offence) which is a danger to the Australian security or community for the purposes of s 36(2C)(b). Therefore the Minister has no reason to refuse the Protection Visa application made under s 36(2)(aa);
(d)replying to CB 377 at [180] of the Tribunal Decision, Sinhalese people, also being the majority of the people in Sri Lanka, are getting persecuted in various ways as well as the Tamil/Muslim minorities or members of the LGBTQ community or any other political factions;
(e)even though relevant laws have been passed by legislation, there is no protection for witnesses in Sri Lanka. Generally one or two persons are getting murdered everyday by the gunmen coming from a motorbike or a vehicle;
(f)the police and every other system have been corrupted likewise the political system in the country. Therefore DMV22 being a middle class Sinhalese should not be a barrier for his Protection Visa application;
(g)the Minister has intentionally disregarded the possibilities which are available to DMV22 under s 36(2)(aa) by reiterating the ineligibilities coming under s 36(2)(a); and
(h)DMV22 categorically says that he is making his application under s 36(2)(aa) and there is no relevancy of s 36(2)(a) for his Protection Visa application, since he is not a refugee.
Minister’s submissions
In the Minister’s First Outline of Submissions it was submitted in relation to ground 1 that:
(a)the term “significant harm” is defined in s 36(2A), and the Tribunal was plainly aware of the definition: see CB 390, where the Tribunal has extracted the definition, and CB 345 at [12], where the Tribunal has summarised its understanding of the complementary protection criterion (s 36(2)(aa)), including that the meaning of “significant harm” as defined in s 36(2A);
(b)nothing said in the Tribunal Decision suggests that the Tribunal misunderstood the term “significant harm”;
(c)the Tribunal was careful to identify and apply relevant Federal Court authority concerning “significant harm” in assessing a number of DMV22’s claims: CB 384-385 at [215]-[217], in relation to SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 (“SZRSN”), and CB 385 at [221], in relation to CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 (“CHB16”); and
(d)insofar as this ground also alleges that the Tribunal Decision is “contrary to the evidence led and the documents marked”, at this level of generality, DMV22’s argument is no more than an expression of his disagreement with the Tribunal’s reasons and conclusions. Disagreement, and even emphatic disagreement, does not disclose jurisdictional error: SZMDS at [124] per Crennan and Bell JJ.
In the Minister’s Second Outline of Submissions it was submitted in relation to ground 1 that:
(a)DMV22’s September 2023 Submissions rise no higher than disagreement with the Tribunal’s findings that he did not meet the complementary protection criterion. They are an invitation to engage in impermissible merits review;
(b)insofar as DMV22 refers to not having committed a “serious crime” as per s 36(2C), this provision is irrelevant. At no time did the Tribunal have reason or cause to consider s 36(2C). As the Tribunal did not consider that DMV22 faced a real risk of significant harm, it did not have cause to consider s 36(2C); and
(c)the only context in which the term “serious crime” was used was in relation to DMV22’s claim to have been a witness to a “serious crime” and fearing harm as a result.
Consideration – ground 1
Section 36(2), (2A), (2B) and (2C) provide as follows:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
Ineligibility for grant of a protection visa
(2C)A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i)the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii)the non‑citizen committed a serious non‑political crime before entering Australia; or
(iii)the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non‑citizen is a danger to Australia’s security; or
(ii)the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
The phrase “significant harm” is defined in s 36(2A) set out above.
The Tribunal dealt with the issue of “significant harm’ and the “real risk of significant harm” at various junctures in the Tribunal Decision, including the following:
(a)at CB 345 at [12] as follows:
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
(b)finding that there was not a real risk of significant harm:
(i)at CB 379 at [187] in the context of the political and economic crisis facing Sri Lanka;
(ii)at CB 379-380 at [191]-[192] in the context of Tamil separatism;
(iii)at CB 381 at [202] in the context of the Easter 2019 bombings in Sri Lanka; and
(iv)at CB 383 at [207]-[208] in the context of double jeopardy arising from criminal offending in Australia;
(c)in the context of DMV22 being separated his from Australian born and citizen child dealt with the complementary protection provisions in the Migration Act as follows at CB 384-385 at [215]-[217]:
215.With regards to the Act’s complementary protection provisions, the Tribunal has considered SZRSN v MIAC [2013] FCA 751 in which, the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of 'significant harm' in s 36(2A). The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s 36(2)(aa) to Australia's 'protection obligations' as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought. Secondly, the Court reasoned that the qualifications in s 36(2B) expressly refer to harm 'in a country' which is necessarily the receiving country if the circumstances of ss 36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.
216.Further, the Court noted the circularity in the operation of s 36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise 'as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country'. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.
217.Lastly, the Court in SZRSN v MIBP had regard to the 'intention' requirements in the s 5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an 'intention', so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable. Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s 36(2A). As such, it appears that although the risk of significant harm envisaged by s 36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s 36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.
before finding at CB 385 at [218] that it was not satisfied that DMV22 faced a real risk of significant harm as a result of being separated from his Australian citizen child;
(d)in the context of the threat of self-inflicted harm observed at CB 385-386 at [221] as follows:
With regard to the applicant having his life arbitrarily deprived though suicide, the Tribunal also notes the recent Federal Court findings in CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089, which upheld the Tribunal's decision that self-inflicted harm does not fall within the concept of harm to which s 36(2A) is directed, principally because the language used in s 36(2A) of depriving or subjecting points to the involvement of other persons, usually the government or somebody with sufficient power or authority to perpetrate such acts. With this case law in mind, the Tribunal finds that there is no substantial reason to believe that the applicant, as a necessary and foreseeable consequence of their removal from Australia to Sri Lanka, will suffer a real risk of significant harm arising from any threats of self-inflicted harm.
(e)in considering DMV22’s claims both cumulatively and individually at CB 387 at [231] concluded that:
Having considered the applicant’s claims cumulatively as well as individually, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required by s 36(2)(aa) of the Act.
It is manifest that the Tribunal knew the correct test to be applied: the test and the relevant provisions of the Migration Act are referred to in the Tribunal Decision (and in the case of the relevant provisions of the Migration Act they are annexed to the Tribunal Decision).
It is also manifest that the Tribunal has addressed each claimed basis for a real risk of significant harm raised by DMV22, and that having had detailed regard to the evidence, and having assessed the facts in relation thereto it has dismissed each claim made. The Tribunal was therefore not satisfied that DMV22 met the criteria for the grant of the Protection Visa under s 36(2)(aa).
The matters set out at [29(b)-(f)] above cannot succeed as they seek to argue about factual matters which were considered by the Tribunal or they seek to have the Court engage in the task of merits rather than judicial review in circumstances where the determination of the factual matters upon which the Tribunal assessed whether DMV22 faced a real risk of significant harm were matters of fact for the Tribunal to determine, and therefore amounts to no more than the seeking of impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The matter set out at [29(c)] is also irrelevant because s 36(2C), and the reference therein to conviction of a particularly serious crime, was not a provision which the Tribunal had reason or cause to consider, and which, accordingly, it did not consider.
Insofar as the matter set out at [29(c)] complains of the Tribunal “intentionally disregarded the possibilities which are available to DMV22 under s 36(2)(aa) by reiterating the ineligibilities coming under s 36(2)(a)” that ground cannot succeed because the “real risk” test prescribed by s 36(2)(aa) imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” under s 36(2)(a): Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269 at [232]-[246] per Lander and Gordon JJ and at [297] per Besanko and Jagot JJ (Flick J agreeing at [342]); ASI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1235 at [31] per Perry J, and the Tribunal can therefore rely on its finding in relation to s 36(2)(a) when making a determination under s 36(2)(aa).
It follows that ground 1 of the Judicial Review Application is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 is as follows:
The applicant contends that AAT has not properly evaluated the evidence of the applicant and had given too much weight to his past Criminal records which is not being fallen under the subsections 36(1B) and 36(1C) of the Migration Act 1958.
DMV22’s submissions
In relation to ground 2 DMV22 submitted that:
(a)the Authority has erred by giving too much weight to the evidence supporting the primary consideration of the protection of the Australian community;
(b)the pattern of offending of DMV22, especially after returning to Australia in 2018, was that of a homeless person who was dependent on drugs. Besides the significant charge of intentionally exposing emergency worker to risk by driving, DMV22’s offending was limited to property offences, possession offences, traffic offences, and breach of court order offences;
(c)there was no significant level of criminality in DMV22’s offending. All of the offending was in the context of a physical dependence on methamphetamines and homelessness, and, aside from the charge of intentionally exposing emergency worker to risk by driving, none of the offending were crimes involving violence. It is conceded that the charge of intentionally exposing emergency worker to risk by driving is a very serious offence. However, it was a single event, not within the pattern of offending of DMV22, and was not within a plan or furtherance of a crime from which DMV22 had any gain. It cannot be described as having a significant level of criminality;
(d)the Tribunal placed heavy weight on the protection of the Australian community as a factor against DMV22. It is submitted by DMV22 that it is probable that the Tribunal would have placed substantially less weight on that consideration if it had regard to the fact that there was no trend towards increased seriousness in DMV22’s offending;
(e)DMV22 has not committed any serious crime including of a violent or sexual in nature (including murder) and particularly against women or children which is viewed very seriously by the Australian community. And the other allegation was that DMV22 has violated an intervention order (“IVO”) due to sending some goods to his wife and child. Even though there was no particular evidence of the reasons for the IVO it was granted by the Magistrates Court in an ex-parte hearing merely based on a statement given by his wife;
(f)since DMV22 has not done any serious crime which can be interpreted as a danger to the Australian community under s 36(1C)(b), his application for the Protection Visa under s 36(2)(aa) cannot be disregarded by the Minister; and
(g)in Nelson v The Queen [2020] VSCA 219 (“Nelson”) the Federal Court (sic) said that the consideration of the community must be approached with caution as sentence cannot be lengthened beyond what is proportionate to the gravity of the offending to protect the community.
Minister’s submissions
In the Minister’s First Outline of Submissions, it was submitted in relation to ground 2 that:
(a)the underlying complaint in this ground appears to be the perceived attribution of weight by the Tribunal. However, the attribution of weight is quintessentially a matter for the Tribunal and not this Court: SZJSS at [32]-[33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. The complaint that the Tribunal has “not properly evaluated the evidence” appears connected to the complaint as to weight and, in any event, is apt to invite merits review; and
(b)the Tribunal did not place undue weight on DMV22’s criminal record. It is true that the Tribunal does refer to his criminal record, but there is nothing unusual or impermissible in the Tribunal having done so:
(i)there is a discussion of his criminal record at CB 351-352 at [58]-[64] but that appears in the background section and arises in the course of the Tribunal summarising various prior visa applications and decisions (including by the Tribunal itself) about DMV22, which provided context for the current Protection Visa application. Those earlier decisions set out DMV22’s criminal history;
(ii)the Tribunal refers to DMV22’s criminal history: CB 370 at [147]. That is in a part of its reasons (at [143]-[147]) where the Tribunal explained that it was concerned by DMV22’s claim, in the present Protection Visa application, that he now, belatedly, wished to disclose a murder he witnessed, some 15-20 years after the event. The Tribunal’s concern was that DMV22 had not advanced any convincing reason why he had suddenly had a “change of heart”, or a “pricking of his conscience”, to lead to him wishing to do so. In that context, the Tribunal observed that DMV22:
(A)in the past had failed to comply with visa conditions and migration laws, and had made false statements in visa applications;
(B)in the past had failed to report changed circumstances; and
(C)had a lengthy criminal record in Australia;
(iii)the Tribunal was observing that DMV22 had displayed, in Australia, a nonchalance towards offending and doing the right thing, which underscored the Tribunal’s hesitancy in accepting that DMV22 had suddenly had a genuine “change of heart” and had genuinely decided to reveal this incident. That is a course of reasoning that a reasonable and rational Tribunal could have adopted: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (“Sabharwal”) at [45] per Perram, Murphy and Lee JJ; and
(iv)the Tribunal referred to DMV22’s criminal record in Australia for the purpose of assessing whether DMV22 would face harm arising from double jeopardy in Sri Lanka: CB 381-383 at [203]-[208]. That is no more than the Tribunal assessing an issue that it perceived as arising on the materials, and therefore a relevant consideration.
Consideration – ground 2
In considering, amongst other things, DMV22’s criminal history, the Tribunal evidently did so in order to assess:
(a)DMV22’s credibility vis-à-vis claims concerning his alleged desire to “unburden himself of the knowledge that he had critical information about a historic crime involving the brutal killing of a Sri Lankan man”: CB 369 at [143]; and
(b)whether DMV22 would suffer double jeopardy on return to Sri Lanka by reason of his criminal offending in Australia: CB 381-383 at [203]-[208].
The above two matters were matters which were relevant and appropriate for the Tribunal to consider in determining if DMV22 met the criteria for the grant of a Protection Visa.
In relation to the historic crime involving the killing of a Sri Lankan man the Tribunal concluded at CB 370 at [146]-[147] as follows:
146.Nowhere in the written, oral, or other evidence does the applicant ever advance any reasons for this change of heart fifteen or more years after the crime. The applicant returned to Sri Lanka for several years after he departed in mid-2013, but did not experience this pricking of conscience during that time. The applicant never adequately explained the reasons he disclosed the information to a third person whom he called Ranga, except to say they became friends while in YHDC over a six-month period, and that they mutually disclosed details about their lives . Ranga, the applicant claimed, (a suspect for murder), was deported to Sri Lanka and then arrested and detained on arrival for a serious crime. If Ranga was likely to be imprisoned and/or associated with criminals in Sri Lanka, then it would follow that taking the confidence of such a person would also be implausible as the foreseeable risks in disclosure of such sensitive information with a criminal network is raised.
147.The Tribunal notes the applicants visa history involves many examples of non-compliance with migration laws in Australia, including not abiding with conditions imposed on a student visa, being an unlawful non-citizen in Australia, making false statements in relation to visa applications and not reporting changes of circumstances (such as a family breakdown). The Tribunal also notes the long list of other laws he has broken in Australia including employment laws and criminal laws about substance abuses, property, and violence. Given this background and without any substantially persuasive reasons to the contrary, it is not unreasonable for decision makers to take into account that the applicant has not experienced any genuine change of heart or mind or a pricking of conscience or was motivated by a belated sense of justice, whereby he would implausibly and unconvincingly disclose to a fellow Sri Lankan in immigration detention his intention to be a witness, prospectively leading to the prosecution and conviction of two criminals for a crime committed more than fifteen years ago.
In relation to the issue of double jeopardy the Tribunal set out the country information to which it had regard: CB 381-383 at [205] including a 2021 DFAT Country report and the references therein to the Sri Lankan legislative criminal procedure provisions concerning double jeopardy. At CB 383 at [206] the Tribunal found that:
There is a real chance that the applicant’s criminal history in Australia would come to the attention of authorities in Sri Lanka given media reports in the past. However, no information could be located by the Tribunal leading to an assessment that his offending in Australia would amount to the applicant facing a real chance or a real risk of being detained or arrested on re-entering Sri Lanka. Reports of Sri Lankan nationals re-entering Sri Lanka and being detained relate to those who have committed offences against Sri Lankan law by leaving the country unlawfully, or who have outstanding criminal charges. The country information supports Sri Lanka as a jurisdiction that does not prosecute persons for offending in another jurisdiction. The applicant has departed and re-entered Sri Lanka on a valid national passport in the past after earlier offending. There is no suggestion Sri Lanka’s immigration and emigration laws will adversely apply to the applicant’s circumstances whereby he will be detained for any period of time on arrival based on his offending. Furthermore, the country information does not support that the applicant’s offending in Australia, and the publicity that followed it, amounts to the applicant holding a membership of a particular social group in Sri Lanka, or for any other reasons mentioned under paragraph 5J(1)(a), should he return to Sri Lanka in the reasonably foreseeable future. Any chance of serious harm to be faced by the applicant in this regard will amount to being a far-fetched or fanciful chance - and not a real chance, of serious harm.
The question of the weight to be given to the evidence, and particular parts of the evidence, was a matter for the Tribunal: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZJSS at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. As was observed in Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 (“Abebe”) at [197] per Gummow and Hayne JJ:
…The Tribunal's reasoning does not reveal any failure to take account of relevant matters or any taking into account of irrelevant matters. In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.
The Tribunal’s preference for certain evidence, or its weighing of the evidence in a particular way, was part of the assessment required in taking into account a relevant consideration (in the sense referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; (1986) 10 ALN N109 (“Peko-Wallsend”), CLR at 39 per Mason J). The conclusions reached by the Tribunal as to DMV22’s credibility concerning his “change of heart” were open to the Tribunal on the evidence, which included not only a consideration of DMV22’s criminal history, but other matters pertinent to his credibility such as the making of false statements on visa applications and breaches of employment laws: CB 370 at [147]. The credibility findings were, moreover, not findings which no reasonable decision-maker could make and were not therefore illogical or irrational (or lacking in an intelligible justification): SZMDS at [130]-[135] per Crennan and Bell JJ; Sabharwal at [45] per Perram, Murphy and Lee JJ.
In order to deal with the issue of double jeopardy the Tribunal obviously had to have regard to DMV22’s criminal record in Australia as well as country information concerning the law as it relates to double jeopardy in Sri Lanka, and in this regard the choice of and weight to be given to the country information was a matter for the Tribunal: NAHI at [11]-[14] per Gray, Tamberlin and Lander JJ; CXS18 at [37] per McKerracher, White and Colvin JJ.
DMV22’s reliance on the judgment of the Victorian Supreme Court – Court of Appeal in Nelson does not assist him. Nelson was an appeal against a criminal law sentence on the basis that it was manifestly excessive, and in which it was observed at [38] per Hargrave and T Forrest JJA that “[a] sentence cannot be lengthened beyond what is proportionate to the gravity of the offending merely to protect the community”. But that has nothing to do with this case, which has nothing to do with criminal sentencing but rather whether an administrative decision-maker has committed jurisdictional error in taking into account DMV22’s criminal record in determining whether he did, or did not meet, the criteria under the Migration Act for the grant of the Protection Visa.
For the reasons set out above ground 2 of the Judicial Review Application is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 is as follows:
The applicant contends that Minister for Immigration, Citizenship and Multicultural Affairs has failed to consider some vital provisions such as 39A of the Immigration act of 1958 and it is against the expectation of the Australian Community and law makers.
DMV22’s submissions
DMV22 has not provided any written submissions in relation to ground 3.
Minister’s submissions
In the Minister’s First Outline of Submissions, it was submitted in relation to ground 3 that:
(a)s 39A has no relevance to the Tribunal Decision. That provision simply requires the Minister to take “all reasonably practicable steps” to ensure the grant of at least a minimum total number of protection visas as determined by the Minister in a legislative instrument. The provision says nothing about whether DMV22 meets the requirements of s 36(2)(a) and (aa); and
(b)insofar as DMV22 refers to the expectations of the Australian community, that is also not relevant. The criteria for the Protection Visa considered by the Tribunal were those in s 36(2)(a) and (aa) which do not turn on community expectations.
Consideration – ground 3
Relevantly, the criteria for the grant of a Protection Visa were contained in s 36(2)(a) and (aa) (set out at [32] above). Neither s 39A nor community expectations are criteria for the grant of a Protection Visa, and as such the matters raised by ground 3 of the Judicial Review Application are irrelevant and cannot succeed in establishing jurisdictional error in the Tribunal Decision.
Ground 4
Ground 4 is as follows:
In the DECISION RECORD dated 28th of September 2022, the Tribunal was erred in Para No.71 stating that the Applicant had not provided any further information and detail in relation to his claims in response to the Section 56 request made on 28th January 2022.
DMV22’s Submissions
In relation to ground 4 DMV22 submitted that:
(a)in the Tribunal Decision at CB 354 at [71] the Tribunal erred in stating that DMV22 had not provided any further information and detail in relation to his claims in response to the s 56 request made on 28 January 2022 (“Section 56 Request”);
(b)DMV22 had sent the necessary documentary information and other video and audio files by way of emails on 31 January 2022 as per the Section 56 Request. The August 2023 contain screenshots of the six emails which were sent by DMV22;
(c)in the Section 56 Request DMV22 was provided with three days to provide further information. DMV22 was asked to open an Immi Account by himself or by another person representing him, or alternatively to send the videos and documents by way of an email;
(d)the Section 56 Request had been given to DMV22 by hand on 28 January 2022, which was a Friday, and it gave him three days, Saturday, Sunday and to submit by Monday. DMV22 had clearly mentioned in an email that he did not have a proper network in the Christmas Island Detention Centre. And his sister who is employed in Sri Lanka is the only person who is assisting him in providing the necessary audio, video, documentary information and translation services from Sri Lanka. DMV22’s sister had sent the videos in emails within two days and DMV22 had forwarded those emails to the Protection Assessment Authority (“PA Authority”);
(e)DMV22 could not get the telephone audio conversations, video and Facebook messages translated because two of the days were holidays in Sri Lanka and it was a heavy task which cannot be completed in two days;
(f)in the Tribunal Decision it was mentioned that DMV22 had not provided the necessary evidence within the given time duration. DMV22 submits that he had sent the emails including all the videos to the PA Authority as per the Section 56 Request within the three day time period. Therefore the PA Authority erred in stating that DMV22 was unable to provide the evidence and therefore the evidence which was produced by DMV22 is lacking and vague; and
(g)furthermore, the Section 56 Request:
(i)provided that DMV22 has the capacity to request additional time by sending a letter to the PA Authority explaining the reasons via email if he was unable to submit all the evidence before the deadline. Accordingly, DMV22 had sent a letter by way of an email explaining his situation and the reasons why he was unable to submit all the evidence on time; and
(ii)stated that if DMV22’s documents were sent via emails those documents need not be certified. But in the Tribunal Decision the Tribunal has repeated the phrase “uncertified” which shows that DMV22 has provided uncertified documents.
The Court interpolates by noting that although DMV22’s submissions refer to the PA Authority there is no such body. As will become evident: see [61] below, DMV22 was requested to send his materials for consideration, ultimately by the Delegate, to a “protection.assessment” email address within the Minister’s Department.
Minister’s submissions
In the Minister's Second Outline of Submissions it was submitted in relation to ground 4 that:
(a)the Tribunal Decision does not state that DMV22 did not respond to the invitation at CB 354 at [71] but rather merely summarises, accurately, the contents of the Section 56 Request: CB 70-76. Any such error is an error of fact, within the Tribunal’s jurisdiction. Lest it be the case DMV22 is claiming that the Tribunal did not have these materials, this is incorrect. The Tribunal refers to the materials DMV22 provided at CB 353-354 at [68]; and
(b)there is no dispute that DMV22 sent the documents, and it is apparent from CB 353-354 at [68] that the Tribunal had those documents before it (and the others DMV22 had sent in). Insofar as there is reference to the term “uncertified” this is neither here nor there. The documents were uncertified as a matter of fact. There is nothing to suggest that the Tribunal placed any adverse weight on the documents because they were not certified.
Consideration – ground 4
The Section 56 Request sent on 28 January 2022 appears at CB 70-76 and, in part, provides as follows:
Request for more information for a protection visa application
We need more information to help us assess your application.
The attached checklist tells you what we need you to give us for each applicant.
When do you need to give us the information
You have 3 days to give us the information we have asked for.
The 3 day period starts on the day after we handed you this request.
How should you provide the information
Attach all documents to your application through ImmiAccount.
Take clear colour scans or photos of the documents. If the document is more than one page, save it as a single file. All text must be visible.
You do not need to get documents certified if you attach them through ImmiAccount.
Our website has instructions on how to use ImmiAccount to attach your documents: we have received your documents, they will show as 'Received' in ImmiAccount. We will not send you any other confirmation.
Do not email or post us another copy of any document you have attached to your application in ImmiAccount unless we specifically ask for it.
If you did not submit your application through ImmiAccount
You can still provide your documents through ImmiAccount if you submitted a paper application or if someone else submitted your application online for you.
Follow these steps:
1. Create your own ImmiAccount.
2.Import your application. Our website has instructions on how to do this: your documents.
Alternatively, attach clear colour scans or photos of the documents to an email and send them to: [email protected]
Include the following information in the subject of your email:
•the application reference numbers from the beginning of this request
•the family name of the main applicant.
We will not send you a confirmation that we have received your documents.
You do not need to get documents certified if you email them to us.
Do not provide fraudulent information
Do not provide fraudulent documents or make false claims. If you do:
•we may refuse your application
•it might affect any applications you make in the future.
Documents in languages other than English
If your document is in another language, have it translated into English. Provide copies of both the translated document and the document in the original language.
Translators in Australia must be accredited by the National Accreditation Authority for Translators and Interpreters ( outside Australia do not have to be accredited. But on each translation, they must include their:
•full name
•address and telephone number
•qualifications and experience in the language they are translating.
These details must be in English.
What happens if you do not provide the information in time
If you do not send us the information we need within the time we have given you, we can decide the application with the information we have at that time without asking you again.
If you need to get the information from another organisation, you must:
•ask them for it before the due date
•provide us with evidence that you have asked them for the information by one of the methods set out above for providing documents.
When you get the information, provide it as soon as you can.
If you cannot give us the information on time for some other reason, attach a letter explaining the reason to your application in ImmiAccount or email it to us. We might let you have more time to give us the information if you cannot get it to us on time for reasons beyond your control.
The passage in the Tribunal Decision at CB 354 at [71] which alleges error by the Tribunal must be put in its proper context.
First, the documents and evidence submitted by DMV22 were summarised at CB 353-354 at [67]-[68] as follows:
67.The following documents were submitted to the Department by the applicant to support his claims:
•Transcript of a Facebook Messenger conversation between the applicant and a person by the name of Malshaan Gunathillake. Such conversations are dated: 19 November 2021 at 1:14am, 19 November 2021 at 2:35am, and 19 November 2021 at 7:21pm;
•Screenshots of a Facebook Messenger conversation between the applicant and a person by the name of Malshaan Gunathillake. Such conversations are dated: 19 November 2021 at 20:14pm; 21:35pm and on 20 November 2021 at 14:12pm. The screenshots also show 3 missed audio calls made on 19 November 2021 at 20:54pm;
•Translations of the above-mentioned Facebook Messenger screenshots; Gunathillake. This screenshot shows them to have 36 mutual friends and that they have Screenshot of the Facebook Activity Log between the applicant and Malshaan been friends since November 2021.
68.The following evidence was submitted by the applicant to support his claims of threats to his family in Sri Lanka:
•An uncertified and untranslated document which is titled “receipt of the police report”. This document is dated 10 December 2021;
•An uncertified and signed copy of a letter on the letterhead of Gunasekara Associates, Attorney at Law & Notaries Public, dated 31 January 2022. This letter states that the applicant’s father is their client and provides some information about instructions they received from their client about him receiving a death threat. They confirm their client applied for a copy of their police report but that said police report could not be provided as the investigation was ongoing. An untranslated copy of this letter has also been provided along with its translation.
•The following 3 audio files:
•2 minutes and 44 seconds audio file: The beginning of the audio is a dial tone (someone calling someone else); two men can then be heard speaking to each other in a foreign language. An English transcript has been provided of the above audio call. In the transcript the person with whom the applicant is speaking states that he has committed a murder and that he is on bail. He tells him not to do anything or say anything if he comes to Sri Lanka and alludes to his mum, dad and sister being harmed if he does not comply. This file is dated 20 November 2021;
•1 minute and 54 seconds audio file: The beginning of the audio is a dial tone (someone calling someone else); two men can then be heard speaking to each other in a foreign language. An English transcript of the above audio call was provided. In this transcript, the person with whom the applicant is speaking states that if he comes to Sri Lanka then he will kill him and his family. This file is dated 22 November 2021;
•4 minute and 57 seconds audio file: The beginning of the audio goes straight into a conversation where two men can be heard speaking to each other in a foreign language. An English transcript of the above audio call has been provided;
•A series of links to video files through a Google Drive link. These files were inaccessible. The applicant was informed that this was the case in a section 56 letter dated 3 February 2022, however, he did not later provide the files in a format to allow the files to be accessed;
•Translation of audio from CCTV Footage, which the applicant claims shows videographic evidence of the applicant’s father being threatened.
Second, under a heading “Request for information under section 56 and 57 of the Act” the Tribunal sets out the following at CB 354 at [69]-[73]:
69.The applicant was provided the opportunity to provide all of the details of their protection claims. The application form that they completed informed them that they should provide all of their claims for protection and provide all documentation or other evidence to support their claims. It also informed the applicant that a decision could be made based on the information provided in their application.
70.On 13 January 2022 the applicant was sent an acknowledgement of valid application letter which advised him that the applicant could provide additional information relating to his claims and how he could provide this. The letter also informed the applicant that the decision on their application could be made without another opportunity for them to present any further information. The Department has made the following requests for further information, and comment in relation to ‘adverse information’, from the applicant:
•On 28 January 2022 the applicant was requested to provide “copies of the text messages and social media messages your family received; the conversations, phone calls and video footage you claim exists, copies of police reports;” and
•To comment in relation to the delay in making his application for a protection visa (noting he has been in custody since November 2020 and applied for a protection visa on 11 January 2022).
71.On 3 February 2022 the applicant was informed that he had not provided any further information and detail in relation to his claims in response to the section 56 request made on 28 January 2022. He was invited to do so. The applicant was informed that the majority of documentary evidence he had provided could not be considered as it was not translated into English. The applicant was asked to translate his documents if he wished for them to be considered.
72.On 10 February 2022 and 21 February 2022, the Department made requests that the applicant provide comment in relation to ‘adverse information’ which could form the reason, or part of the reason, for refusing to grant the applicant a protection visa. The ‘adverse information’ was put to the applicant and his responses are detailed in the Findings of Fact section below.
73.I consider that the applicant has been given a reasonable opportunity to provide additional information and evidence to substantiate his claims. I am now proceeding with a decision based on the information before the Department.
Although it is not put or acknowledged as such in the Tribunal Decision the contents of the actual paragraphs set out in the two preceding paragraphs (that is CB 353-354 at [67]-[73]) are a direct copy of paragraphs appearing in the same order in the Delegate’s Decision at CB 98-100. Thereafter, at CB 354 at [74] the Tribunal sets out the fact that the Delegate’s Decision on 1 March 2022 was to refuse to grant DMV22 a Protection Visa. In effect the paragraphs at CB 353-354 at [67]-[74] form part of an alleged factual chronology.
The facts set out at CB 354 at [71] are not strictly accurate. On 3 February 2022 a further s 56 request was made to DMV22 (“Further Section 56 Request”): CB 77-84. The Further Section 56 Request requested that DMV22 provide “further information” and referred to:
(a)the receipt of three audio files and a document being a photograph of a “receipt of the police report” (“Police Report Receipt”) and noted that neither the audio nor the report were in English and requested English translations of the audio files and the Police Report Receipt;
(b)a Word document provided as evidence of an alleged Facebook conversation, and requested screenshots of the actual Facebook conversations and English translations thereof; and
(c)four emails from DMV22 to the Department dated 31 January 2022 and to links in those emails to Google Drive for a number of files which the Department was unable to access and requested that they be resent by attaching the relevant files to an email (rather than providing Google Drive links).
In relation to ground 7 the Minister submitted that:
(a)DMV22 takes issue with the Tribunal’s findings regarding the consistency with his claims. He purports to provide an explanation for these inconsistencies, however, this again simply invites impermissible merits review. Further, the Tribunal expressly addressed the matters DMV22 now raises to explain the discrepancies (at CB 364-365 at [118]). It is also to be noted that the Tribunal did not reject these claims based on inconsistencies between his oral and written claims alone, but in the context of other concerns including inconsistency with media reports (CB 365 at [119]-[121]) and previous fabrication of claims (CB 364-365 at [118]). All provide a rational basis for the Tribunal to have concluded as it did; and
(b)otherwise, the Applicant’s Second Outline of Submissions seek impermissible merits review by seeking to answer the Tribunal’s credibility findings on various matters (including with new evidence) or cavil with the findings based on the DMV22’s own evidence (such as his response to the s 424AA invitation).
Consideration – ground 7
Almost without exception DMV22’s submissions on ground 7 seek, by reference to the materials before the Tribunal, as well as new material (most of which is bare assertion in the submissions), to re-argue the matters upon which the Tribunal has made factual findings upon which adverse credibility findings have been made. In essence, DMV22 seeks merits review of these findings, as can readily be seen, for example, by DMV22’s submissions relying upon:
(a)recent events in Sri Lanka (that is events after the Tribunal Decision);
(b)seeking that he be given the “benefit of the doubt” by the Court in relation to any minor inconsistencies in his accounts of events; and
(c)his referring to what his father and sister would have done if they had been aware of the threats made to DMV22.
The Court’s role is to conduct a judicial review, and not to review the merits of the Tribunal Decision, and the reasons of the Tribunal are not to be, as DMV22 seeks to do here, over-zealously scrutinised in a search for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; ApplicantWAEE at [46] per French, Sackville and Hely JJ. The line between judicial review and merits review lies at the heart of Australian administrative law and the boundary between the two is vigorously policed: Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11 at [127] per Spigelman CJ; Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 (“Zentai (No 3)”) at [367] per McKerracher J
It must also be borne in mind that the Tribunal was not required to uncritically accept all or any of the claims made by DMV22, or have rebutting evidence before it could decide not to accept DMV22’s claims: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, CLR at 596 per Kirby J; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1, FCR at 451 per Beaumont J; EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153 at [36]-[37] per Judge Given (citing Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
Fact-finding is a matter for the Tribunal, and as part of its fact-finding function it is for the Tribunal to identify the material it considers relevant to its reasoning and to give that material the weight it considers to be appropriate, so that disagreement with the Tribunal findings, even if the disagreement is emphatic, constitutes no more than a request for impermissible merits review of the Tribunal Decision, contrary to long-standing and established principle: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Zentai (No 3) at [367] per McKerracher J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per RD Nicholson J. It is sufficient if the evidence in support of a relevant finding is “slight”: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ.
What DMV22’s submissions seek to do is to apply the most favourable conclusion with respect to general factual circumstances, and to apply that conclusion to suggest error in the Tribunal Decision, without considering the facts and material as they were considered and applied to DMV22’s circumstances by the Tribunal. What the Tribunal did in this case was to deal with each of the factual claims made by DMV22 and consider facts relevant to those claims, including any relevant country information, and draw a conclusion, based on those facts as they appeared at the time of the Tribunal Decision. When viewed as a whole, ground 7 amounts to little more than a thorough-going expression of disagreement with a number of factual findings made in the Tribunal Decision, and in the circumstances is no more than an impermissible merits review challenge and does not establish jurisdictional error in the Tribunal Decision.
As to the alleged unreasonableness of the Tribunal findings concerning whether DMV22’s explanation as to whether social media evidence was falsely created: CB 369 at [142], the Court notes that:
(a)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: SZMDS at [131], [132] and [135] per Crennan and Bell JJ; and
(b)an unwarrantable assumption is not made where, on the evidence, there is an evident or intelligible justification for the Tribunal’s conclusion: BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [8] per Perram J;
(c)the test for unreasonableness is stringent: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1 (“SZVFW”) at [11] per Kiefel CJ, “extremely confined”: SZVFW at [52] per Gageler J, or requires something in “the realm of the extraordinary”: SZVFW at [70] per Gageler J.
Whether or not social media evidence provided by DMV22 was false was one of a suite of concerns that the Tribunal had as to DMV22’s credibility (see CB 362-370 at [104]-[147]), and the Tribunal, in a finding that DMV22’s “explanations that he did not falsely create this social media evidence … [are] lacking in persuasion” had regard to an earlier Protection Visa application by DMV22 in which DMV22 had been found to have created documents including a hospital record, a police complaint, a party membership and letters from Members of Parliament. In the Court’s view there was an intelligible justification for the “lacking in persuasion” finding having regard not only to the falsely created documents in the earlier Protection Visa application, but also the suite of other concerns about DMV22’s credibility, and the Tribunal’s approach was not legally unreasonable.
In the circumstances ground 7 does not establish jurisdictional error in the Tribunal Decision.
Ground 8
Ground 8 is as follows:
DMV22 has not done any “serious crime” under s 36(1C) and has satisfied both the other criteria in subsections 36(1B) and (1C).
DMV22’s submissions
In the September Submissions, DMV22 submitted that:
(a)he has not done any “serious crime” under s 36(1C) and has satisfied both other criteria in s 36(1B) and (1C);
(b)in December 2019 DMV22 appeared and pleaded guilty before the Country Court in Melbourne and was convicted of intent to expose emergency worker to risk by driving, and a base prison sentence of 12 months was imposed. And on the same day, DMV22 was convicted of five additional charges connected to the same matter. The aggregated sentence imposed by the court was 20 months imprisonment with a non-parole period of 14 months;
(c)he is not a danger to Australian security and he was not convicted for an offence punishable as mentioned in ss 5M(a) and (b). Therefore he urges that his Protection Visa application made under s 36(2)(aa) cannot be disregarded by the Minister under s 36(1C);
(d)in relation to the Tribunal Decision at CB 370 [150] DMV22’s most recent offence was that of exposing an emergency worker to risk by driving a vehicle under the influence of drugs. But he did not have any intention to do any harm to that officer and at the time in which the incident took place, he was totally unconscious under the influence of intoxication. DMV22 was not therefore in a position to understand the gravity of his act and other repercussions after the incident;
(e)at the time the offence was committed by DMV22 he had driven his vehicle at a speed of 20kmh, a comparatively lower speed. In any case if he had an intention to harm the officer, he had to drive his vehicle at a comparatively higher speed;
(f)on the other hand DMV22 has pleaded guilty to the offence despite the fact that he was a mentally impaired person under the influence of drugs. He pleaded guilty not because he intentionally did it to harm that officer but just because he wanted to end his legal obligations with Australia as soon as possible, since at that time DMV22 intended to go back to Sri Lanka after he had served his sentence, and he did not file an appeal against sentence;
(g)his criminal history can be disregarded, since he has fully served the sentence and is now genuinely repenting on his past mistakes;
(h)he has genuinely showed his repentance before the Tribunal as follows:
I don’t blame anyone but myself for what I am facing right now. I wasted my whole life at least the most it for drugs. But once I had my son with me from 2013-2017, I did not touch any drug at all because I wanted to be a role model for my son. But when I returned back to Australia and found out that my partner has been cheating on me for the last two years since she returned back to Australia from 2015. I did not take that well obviously I took the worse decision ever by turning myself to drugs, I cannot take back, what happened. If I was to be given a wish, I would ask for is to go back in time and not to touch drugs.
(i)at the time these offences occurred DMV22 was a drug addict and he admitted the fact that what he did on influence of drugs was wrong and he wanted to make a good move in his life, if he got any chance in the future;
(j)it is a welfare need and it should not be dealt with in the criminal justice system. DMV22 was not actually in a position to plead guilty because he was mentally impaired due to his drug addiction. Nevertheless, he pleaded guilty to end the matter quickly without knowing the repercussions;
(k)he has lost everything other than his life. His marriage has broken, his Permanent Residency visa was cancelled, and his son has not seen him for years since he has been in the detention for a long time. If he went to Sri Lanka his life could also end and his son will never ever see his father anymore;
(l)even though he has produced medical reports which indicates his drug addiction, the Tribunal has disregarded all those reports without giving any weight to his mental impairment from his drug addiction;
(m)the medical reports submitted to the Tribunal indicate that he suffers from post-traumatic stress disorder, depressive disorder, drug induced psychosis and evidence from a forensic psychologist who diagnosed him as suffering from adjustment disorder in 2018 and 2019;
(n)it is a well-recognized fact that the rehabilitation is the best option which should be offered rather than incarceration. Not only by the United Nations, even in Australia there is a well-recognized legal framework on mentally impaired persons. According to the Disability Discrimination Act 1992 (Cth) (“DD Act”) in Australia a “disability” does not rely on a formal diagnosis;
(o)the Australian legal system as well has well recognized the fact that the mental condition of an accused person is to be considered as a mitigatory factor in sentencing them, and especially when it comes to mentally impaired persons, the court is bound to impose sentencing in a lenient way; and
(p)in relation to his Protection Visa application, he has now fully served his sentences for all the wrongdoings he has done in his past, and there is therefore no point in reiterating his past criminal record and he should be given one more chance to correct his mistakes.
Minister’s submissions
In relation to ground 8 the Minister submitted that:
(a)DMV22’s submissions in relation to this ground misunderstands the Tribunal Decision;
(b)at no time did the Tribunal make any finding in relation to s 36(1C). The Tribunal Decision is entirely dedicated to whether DMV22 met the refugee or complementary protection criterion in s 36(2), and it was entirely unnecessary for the Tribunal to consider s 36(1C);
(c)insofar as DMV22 takes issue with the Tribunal Decision at CB 370 at [150] there is no error in this paragraph. The Tribunal states that it would be a “strident” approach if it were to draw adverse credibility findings on the basis of minor inconsistencies and the fact that DMV22 had a criminal history, but the Tribunal goes on to state that the concerns that it had were neither minor nor trivial. In fact, the Tribunal’s concerns were significant and detailed extensively at CB 362-370 at [104]-[147]. Relevantly, these concerns did not include the criminal convictions;
(d)further, to the extent that DMV22’s submission that that his criminal history can be disregarded is taken to be a suggestion his criminal history was “irrelevant”, this is not made out. DMV22’s criminal offending gave rise to an implicit claim which was “salient” from the materials before the Tribunal. Had the Tribunal not considered this claim, it arguably would have fallen into jurisdictional error; and
(e)finally, the other matters raised in DMV22’s submissions, such as reference to the United Nations, the DD Act and the protection of the Australian community, are all matters which were not raised before the Tribunal and which appeal to the merits of the Tribunal Decision.
Consideration – ground 8
Section 36(1B) and (1C) provide as follows:
36Protection visas—criteria provided for by this Act
…
(1B)A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
Section 5M(a) and (b) provide as follows:
5M Particularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
Section 5(1) defines “serious Australian offence” as follows:
serious Australian offence means an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
DMV22’s Protection Visa application did not, however, fall for consideration or determination by reference to ss 36(1B) and (1C) or 5M(a) and (b) or the definition of “serious Australian offence” in s 5(1), but rather to the criteria in s 36(2) and it was by reference to the criteria in s 36(2) that the Tribunal Decision was made. DMV22’s arguments and references in his submissions to ss 36(1B) and (1C) and 5M(a) and (b) and the definition of “serious Australian offence” in s 5(1) are therefore irrelevant to any issue related to the Tribunal Decision and whether it is affected by jurisdictional error.
Insofar as DMV22’s submissions allege error in what is said in the Tribunal Decision at CB 370 at [150] there is no error: all that the Tribunal does at [150] is to:
(a)set out how it approached assessing DMV22’s evidence and his credibility; and
(b)make the observation that its “numerous adverse credibility concerns … are grave and not trivial”.
DMV22’s observations about his most recent sentencing are irrelevant to the criteria for the assessment of his Protection Visa application under s 36(2). That assessment has nought to do with his being punished or his prospects of rehabilitation or his being given a further chance, and the outcome of the Tribunal’s assessment as to whether DMV22 meets the criteria under s 36(2) is not a punishment in any legal (or even administrative) sense.
DMV22 also alleges that the Tribunal did not have regard to medical reports submitted to the Tribunal in relation to various mental health conditions that DMV22 asserts he was suffering from. The Tribunal noted that DMV22 “appears to have some underlying psychological health complications” and “past addictions” but no evidence of the latter was provided: CB 378 at [184] (and see also CB 385 at [219]). A review of the CB indicates that no medical reports with respect to any mental health conditions were submitted to the Tribunal by DMV22. The Tribunal went on to find that there was no real chance or real risk of harm arising from a lack of services in Sri Lanka with respect to “drug rehabilitation … or psychological and other mental health support in Sri Lanka”: CB 378 at [184]. DMV22’s allegation of a failure to consider medical reports concerning his mental health is not made out because there is no evidence that such reports were ever submitted to the Tribunal, but in any event the Tribunal, of its volition, considered the availability of mental health services in Sri Lanka for the purposes of its complementary protection assessment. There is no error in the Tribunal Decision in regard to this issue.
Otherwise, ground 8 is, once again, no more than a plea for this Court to engage in impermissible merits review: Wu Shan Liang.
In the circumstances ground 8 does not establish jurisdictional error in the Tribunal Decision.
Ground 9 – Discretion under s 36(1)(b)
Ground 9 is as follows:
The Minister had a discretion under s 36A(1)(b), in consideration of s 36(1C), regarding a protection visa application made under s 36(2)(aa).
DMV22’s submissions
In relation to ground 9 in the September 2023 Submissions DMV22 submitted that:
(a)the legislature has given some discretionary power to the Minister in consideration of s 36(1C) regarding a Protection Visa application under s 36(2)(aa);
(b)section 36A(1)(a) specifically says that s 36(1C) should be considered by the Minister regarding a Protection Visa application made under 36(2)(a);
(c)but s 36A(1)(b) does not specifically say that s 36(1C) should be considered by the Minister regarding a Protection Visa application made under s 36(2)(aa);
(d)in applying the common law principle of “expressio unius est exclusio alterius” (the expression of one thing is the exclusion of the other), DMV22 argues that the legislature intentionally has not mentioned s 36(1C) in s 36A(1)(b) to render a discretion on the Minister regarding the Protection Visa application made under s 36(2)(aa);
(e)in that sense DMV22 argues that in special circumstances the Minister can use his discretion in consideration of s 36(1C) regarding a Protection Visa application made under s 36(2)(aa); and
(f)further DMV22 contends that even though he has pleaded and was convicted for a “serious Australian offence” (exposing an emergency worker to risk by driving a vehicle) which is punishable by a sentence more than three years imprisonment, his sentence was just 20 months imprisonment with a non-parole period of 14 months. DMV22 argues that since he has not served a sentence which is more than three years imprisonment, his conviction can be disregarded by the Minister according to the discretion given to him by s 36(A)(1)(b).
Minister’s submissions
In relation to ground 9 the Minister submitted that:
(a)section 36A came into force on 24 May 2021and applies to DMV22’s circumstances;
(b)as the Explanatory Memorandum to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 states:
10.The purpose of new subsection 36A(1) is to ensure that the Minister or delegate considers and makes a record of their finding in respect of the refugee and complementary protection criteria in section 36 of the Migration Act. The provision is structured in a way that reflects Australia's non-refoulement obligations, and allows for these obligations to be identified before considering whether the person is ineligible for grant of the visa on other grounds.
(c)it is clear from the Tribunal Decision that the Tribunal focused on whether DMV22 met the refugee and complementary protection obligations under s 36(2)(a) and (aa), and as such the Tribunal complied with s 36A. Having found that DMV22 did not meet either s 36(2)(a) or (aa) the Tribunal did not need to go any further.
Consideration – ground 9
Section 36A(1) provides as follows:
36A Consideration of protection obligations
(1)In considering a valid application for a protection visa made by a non‑citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following:
(a)the non‑citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C);
(b)the non‑citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country;
(c) the non‑citizen:
(i)satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and
(ii)would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non‑citizen is a non‑citizen mentioned in paragraph 36(2)(a).
In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497 at [35] per Kiefel CJ, Keane, Gordon and Steward JJ the majority in the High Court observed that in considering a valid application for a protection visa s 36A required that decision-makers must assess whether the refugee (s 36(2)(a)) and complementary protection (s 36(2)(aa)) criteria are met before considering any other criteria.
The record that the Tribunal is obliged to make by reason of s 36A(1) is one that it “must” make, “must” being a word indicative of an imperative command, expressing necessity in the sense of an obligation or requirement: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”); Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461 (“Posner”) at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 (“Kosovich”) at 275 per Millhouse J; Pitrau v Barrick Minig Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208; (20120 64 AILR 101-563 (“Pitrau”) at [23]-[28] per Lucev FM.
In this case the Tribunal did first consider whether the refugee (s 36(2)(a)) and complementary protection (s 36(2)(aa)) criteria were met and determined that they were not, and gave reasons as to why not, and it thus fulfilled the obligation imposed by s 36A(1), and having found that DMV22 did not meet either s 36(2)(a) or (aa) the Tribunal did not need to go any further. There was therefore no error by the Tribunal.
In the circumstances ground 9 does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that DMV22 has failed to establish jurisdictional error in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 14 May 2025
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