Dqi17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 678
•9 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DQI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 678
File number(s): SYG 2556 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 9 April 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to decision of the Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise visa – whether the Authority misunderstood applicant’s claim – whether the Authority gave reasons for decision as contemplated by s 473EA(1) of the Act – whether the Authority would have made a jurisdictional error had it not provided reasons as contemplated by s 473EA(1) of the Act – application dismissed. Legislation: Acts Interpretation Act 1901 (Cth) s 25D
Federal Circuit Court Rules 2001 (Cth) Sch 1, Pt 3
Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), 36(2)(aa), 368(1), 430(1), 473DB, 473EA(1), 476
Cases cited: BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
The Republic of Nauru v WET040 [No 2] [2018] HCA 60
Vo v Minister for Immigration & Anor [2017] FCCA 1170
Number of paragraphs: 50 Date of last submission/s: 10 June 2020 Date of hearing: 9 June 2020 Place: Sydney Solicitor for the Applicant: Ms S Hodges of Hodges Legal, by video Solicitor for the First Respondent: Ms D Watson of Australian Government Solicitor, by video ORDERS
SYG 2556 of 2017 BETWEEN: DQI17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
9 APRIL 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $6,200.
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, a citizen of Sri Lanka, applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).
The applicant left Sri Lanka in 2012,[1] and he applied for a SHEV on 4 February 2016.[2] A delegate of the Minister refused the application on 3 February 2017, and the decision was referred to the Authority on that day. The Authority affirmed the decision not to grant the applicant a SHEV on 19 July 2017.
[1] CB299, [30]
[2] CB122
CLAIMS FOR PROTECTION
The applicant’s claims for protection, as stated in a statutory declaration that formed part of his application for a SHEV, are as follows.[3]
[3] CB104-111
The applicant is a citizen of Sri Lanka, a Tamil and a Hindu. He was born in a village in Batticaloa, Eastern Province (village).
2007 LTTE incident
In around 2007 five members of the Liberation Tigers of Tamil Eelam (LTTE) arrived at the applicant’s family home and took the applicant by force. When the applicant resisted the LTTE members beat him and tied his hands together. The applicant was made to walk for about four to five kilometres before being put in the back of a pick-up truck with about five or six other Tamil boys. One of the boys, Mr T, was the applicant’s friend. The applicant travelled in the truck for about one hour before reaching the LTTE camp. While the applicant and the other boys were detained the LTTE members explained that they had been recruited to fight for the LTTE. The applicant and the other boys were locked in a room together and taken out each day for physical training.
Approximately one week after the applicant and Mr T were detained, they escaped. Mr T recognised the area where the LTTE camp was and took the applicant to his uncle’s house. Mr T’s uncle informed the applicant’s parents where the applicant was and the applicant’s father collected him the following day. The applicant was too scared to return to his family home so his father took him to his aunt, Ms P’s home, where the applicant went into hiding. Approximately six weeks later, to be closer to school, the applicant relocated to another aunt, Ms V’s home, where the applicant remained for the next three years.
First claimed 2011 incident
In around 2011, after the applicant had finished his final exams, he returned to his family home. Five or six days later, six armed men entered the applicant’s family home and grabbed the applicant by his arms. The men tied the applicant’s hands together, forced him outside, and put him on one of their motorbikes. The men rode their motorbikes to a cemetery in the village where they threw the applicant off the motorbike and accused him of being part of the LTTE, as well as bringing weapons into the village. The applicant said he did not have any weapons and had no connection with the LTTE, but the men refused to listen. The men beat and pushed the applicant to the ground, and kicked him with their feet. This lasted for about twenty minutes.
After the men finished beating the applicant one of the men held a gun to the applicant’s head, and told him they would be coming back to the applicant’s family home to collect the weapons. The man said when they returned the applicant must hand over all weapons, otherwise he would be killed. The men left the applicant bruised and bleeding in the cemetery. The applicant’s father had tried to follow the men and came looking for the applicant. The applicant’s father eventually found the applicant in the cemetery and took him home.
The following day the applicant’s father took him to the village hospital where he was treated for his injuries. The applicant was too scared to return to his family home so his father took him to Ms V’s house, where he stayed for approximately one month.
Second claimed 2011 incident
Approximately three weeks after the applicant’s attack, the “same men” returned to the applicant’s family home and searched for him and any weapons. The men enquired about the applicant’s whereabouts and the applicant’s parents said the applicant had gone overseas. The men threatened the applicant’s parents and said that if the applicant returned he would be killed. The applicant did not feel safe staying in one place and over the next 10 months the applicant moved between Ms V’s and Ms P’s homes, and the home of his sister-in-law, Ms K.
Third claimed 2011 incident
In around 2011 “the same men” returned to the applicant’s family home and searched the house for the applicant and any weapons. They threatened the applicant’s parents and said that if they found the applicant they would kill him. These searches were conducted approximately “one a month”.
Events after 2011
The applicant decided he had to leave Sri Lanka. In 2012, while the applicant was staying at Ms V’s home, the applicant’s mother told him that his aunt and uncle were fleeing to Australia. The applicant made arrangements to travel with them. The applicant left Sri Lanka unlawfully with his aunt, uncle, and two cousins.
In around 2013 the applicant’s parents informed him that the “same plain clothed armed men” had returned to their home looking for the applicant. Approximately every six weeks around four to six men would ride past the applicant’s family home on motorbikes to see if the applicant was home. The “same plain clothed armed men” returned to the applicant’s family home in 2015 and questioned the applicant’s parents about the applicant’s whereabouts. The “men” told the applicant’s parents to inform them if the applicant returns to Sri Lanka.
The applicant is scared that if he is forced to return to Sri Lanka he will be harmed and he is frightened the authorities will have further cause to suspect him of being part of the LTTE because he left Sri Lanka unlawfully. The applicant fears he will be harmed by the Sri Lankan authorities, particularly the police, the Criminal Investigation Department, and paramilitary groups because he is a young ethnic Tamil from the Eastern Province, he is presumed to be a LTTE supporter and he is a failed Tamil asylum seeker.
SHEV interview
The applicant was interviewed by the delegate on 8 November 2016 (SHEV interview).[4] Relevant to an aspect of the grounds on which the applicant relies is what the applicant said as recorded in the following passage from the delegate’s statement of reasons:[5]
The applicant was asked if the whole interaction with the armed men was because he was with the LTTE for just one week in 2007. I note that the applicant has never supported the LTTE and none of his family have ever been members of the LTTE. I find it implausible that one week forcible recruitment into the LTTE in 2007 would cause the applicant to be targeted like he states he was in 2011. The applicant speculated that the armed men may have thought that he was supporting the LTTE for the whole time since he was taken in 2007, as when he escaped he did not go home but went to his Aunt’s house to live.
[4] CB126
[5] CB160
According to the Authority,[6] at the SHEV interview the delegate asked the applicant why the men who attacked the applicant in the first claimed 2011 incident thought the applicant had weapons, in response to which the applicant said that when he went to live with his aunt and was not at his own home, the men would have assumed that he was working for the LTTE and they may have thought he was supporting them and hiding some weapons.
[6] CB296, [18]
NEW INFORMATION
After the matter was referred to the Authority, the applicant’s representative provided a submission to the Authority on 27 February 2017 to which there was attached an unsigned statutory declaration prepared by the applicant; and on 28 February 2017 the Authority received a signed statutory declaration. Attached to the statutory declarations was an undated statutory declaration prepared by the applicant’s cousin, Mr U. The statutory declarations identified a number of new pieces of information, namely, that the applicant’s family were approached by “these men” in December 2016 regarding the applicant’s whereabouts, and further information about his extended family.[7] The submission also included a number of links to country information that was not before the delegate.
[7] CB268-278
AUTHORITY’S REASONS
The Authority first identified the information that was before it. The Authority was not satisfied there were exceptional circumstances to justify considering the statutory declarations or links to country information.[8]
[8] CB292-293, [3]-[10]
Young Tamil male from a former LTTE controlled area
The Authority accepted the applicant is a citizen of Sri Lanka; the applicant was forcibly taken from his home in 2007 by LTTE members in an attempt to recruit him and the applicant escaped after a week of training;[9] the applicant was too scared to return home after he was forcibly removed from his home and detained by the LTTE;[10] the applicant wanted to continue his education and received schooling up to an advanced level;[11] during the month in which the first claimed 2011 incident occurred the applicant went to live in Ms V’s home, and over the next ten months he moved between Mr V’s and Mr P’s homes, and his sister-in-law’s home.[12] The Authority did not, however, accept the first claimed 2011 incident occurred; it found “the applicant fabricated this aspect of his evidence to enhance his protection claims”.[13] The Authority relied on the following:
(a)After the 2007 LTTE incident the applicant continued to reside in Batticaloa, although in different locations; but no men attended the applicant’s parents’ house to search for the applicant, or to determine his whereabouts before the first claimed 2011 incident.[14]
(b)In those circumstances, the Authority considered it implausible that, three and a half years after the applicant was detained at a LTTE camp for one week in July 2007, unidentified men from a Sri Lankan authority or a paramilitary organisation would have known the applicant and attended his home.
(c)The Authority found it “unbelievable” that unidentified men took the applicant on their motorbike to a cemetery where they beat him, held a gun to his head, accused him of being part of the LTTE, for having brought weapons into the village and told him that they would be coming to collect the weapons, and when they returned he had to hand over all of the weapons or he would be killed.[15]
[9] CB296, [16]
[10] CB296, [16]
[11] CB296, [17]
[12] CB297, [22]
[13] CB296-297, [19]
[14] CB296, [19]
[15] CB296-297, [19]
Having found the first claimed 2011 incident did not occur, the Authority concluded it did not accept the applicant’s father had attempted to follow the men; or that he eventually found the applicant; or that the applicant’s father took the applicant to a hospital to treat his injuries; or that any men returned to the applicant’s parent’s home at any time and conducted a search of the house looking for the applicant and any weapons, or threatened his family at any time; or that there were people watching the applicant’s house in a suspicious manner.[16]
[16] CB297, [21]
In light of these findings, the Authority found it “highly unlikely” that the applicant would have had any profile that would have attracted attention to the applicant in the manner that he describes. The Authority relied on the following:[17]
(a)The applicant’s representative submitted that the Sri Lankan authorities’ screening process to determine individuals involved in the LTTE predominantly relies on individuals identifying themselves.
(b)The applicant was only at the LTTE camp for one week in 2007.
(c)At the interview the applicant did not state that any of his personal details or photographs were taken while he was detained by the LTTE.
(d)The applicant’s evidence was he did not have further contact with the LTTE after he escaped.
(e)The applicant did not provide any evidence that his family were approached by the LTTE after he moved to his aunts’ houses to attempt to locate him or showed any interest in him.
(f)When asked whether anyone else from the applicant’s family were targeted, the applicant said no.
(g)Apart from claiming he had been forcibly recruited into a LTTE camp for one week in 2007, the applicant did not claim he or his family were personally associated with the LTTE, or that his family were ever imputed to have been associated with the LTTE; and at his interview before the delegate the applicant said his family members had not been involved with the LTTE, and he said he had nothing to do with the LTTE after he escaped in 2007.
[17] CB297, [20], [23]
The Authority was not satisfied the applicant has a profile now, or in the reasonably foreseeable future that would link him to the LTTE. Having regard to country information, the Authority found there is no real chance of the applicant being harmed by the Sri Lankan authorities or any other group or person on the basis of the applicant being a young Tamil male from a former LTTE controlled area now or in the reasonably foreseeable future.[18]
[18] CB298-299, [25]-[26]
Religion – Hindu
The Authority accepted the applicant is Hindu. The Authority, however, was not satisfied the applicant will face a real chance of serious harm if he were to return to Sri Lanka on the basis of religion. The Authority referred to country information that showed that “official discrimination on the basis of religion is rare”.[19]
[19] CB299, [27]-[29]
Returning Tamil Asylum Seeker who departed Sri Lanka illegally
The Authority accepted the applicant left Sri Lanka unlawfully. Relying on country information, the Authority found that on his arrival the applicant will be investigated at the airport; charged with the offence of illegal departure under Sri Lanka’s Immigration and Emigration Act; held in custody at the airport while investigations are completed, and potentially detained over a weekend pending an appearance before a magistrate; if the applicant pleads guilty the applicant will be fined and released, or, if he pleads not guilty, the applicant will be held on remand pending bail and, if later found guilty, he will be fined for the offence. The Authority found that a fine does not amount to serious harm, and despite Sri Lanka’s prisons being below international standards, a brief period of detention such as that to which the applicant might be subject would not amount to serious harm.
Conclusion
The Authority concluded the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act or the complementary protection criteria in s 36(2)(a) of the Act.
GROUNDS OF APPLICATION
The applicant relies on the grounds stated in the amended application which was filed pursuant to leave I granted at the hearing. It contains two grounds, the first of which is identified as “Ground 1”, and the second as “Ground 3”.
Grounds 1 and 3
Ground 1 is a follows:
The IAA committed jurisdictional error by failing to provide reasons for its finding.
PARTICULARS:
(a) At [11] the applicant claimed the following
i In . . . 2007, he was forcibly taken to an LTTE camp from his home in . . . . ;
ii The applicant spent approximately a week at the camp before he escaped with a fellow boy, [Mr T];
iii Following his escape, the applicant was too scared to return to his family home and relocated several times within Batticaloa;
iv In [the time of the first claimed 2011 incident], the applicant returned to his parent’s house in . . . where he was abducted by armed men and taken to . . . . cemetery. The applicant was assaulted and interrogated about his LTTE links and access to weapons.
v In around [the time of the second claimed 2011 incident], approximately 3 weeks after his attack the same men came to his parent’s home in search for him and any weapons. The men threatened the parents that if the applicant returned he would be killed.
vi In around [the time of the third claimed 2011 incident] the same men returned to his parent’s home and searched the home. Again the family was threatened and told that if they found the applicant he would be killed.
vii The searches were conducted by the men about once a month.
(b) At [19] the IAA considered it implausible that the applicant would have been pursued by the unidentified men after being detained in the LTTE camp for a week.
(c) In relation to the applicant’s claim that he was assaulted and interrogated [as claimed in the first 2011 incident], the IAA stated the following:
i “I find it unbelievable that these men then took the applicant on their motorbike to a cemetery where they beat him……..I do not accept this incident took place and I am of the view that the applicant fabricated this part of his evidence…….”.
Ground 3 is as follows:
The IAA committed jurisdictional error by failing to consider an integer of the applicant’s claim.
PARTICULARS:
(a) At [11] the applicant claimed the following:
i In . . . 2007, he was forcibly taken to an LTTE camp from his home in . . . ;
ii The applicant spent approximately a week at the camp before he escaped with a fellow boy, [Mr T];
iii Following his escape, the applicant was too scared to return to his family home and relocated several times within Batticaloa;
iv [At the time of the first claimed 2011 incident] the applicant returned to his parent’s house in Mandoor where he was abducted by armed men and taken to Mandoor cemetery. The applicant was assaulted and interrogated about his LTTE links and access to weapons.
v [At the time of the second claimed 2011 incident] the same men came to his parent’s home in search for him and any weapons. The men threatened the parents the [sic] if the applicant returned he would be killed.
vi [At the time of the third claimed 2011 incident] the same men returned to his parent’s home and searched the home. Again the family was threatened and told that if they found the applicant he would be killed.
vii The searches were conducted by the men about once a month.
(b) The IAA dealt in part only with the applicant’s claim in (a)(iv) above;
(c) The IAA failed to adequately [sic] the claims made in subparagraphs (a)(v-vii) above
In his written submissions the applicant directed all of his submissions to ground 1, noting that “[t]his ground”, which I find is intended to refer to “Ground 3” of the amended application “rests on the above submissions as to Ground 1”; and further noting:[20]
Simply put, the submission can succinctly be stated as that by reason of the errors in dealing with the [first claimed 2011 incident], the IAA did not deal adequately with the applicant’s claims as to visits to the parents’ home afterwards.
[20] Applicant’s outline of submissions, second-mentioned [26]
Mr Hodges, who appeared for the applicant, made oral submissions that did not differentiate between the two grounds. I will therefore consider the applicant’s grounds on the assumption that the applicant’s submissions are directed to both grounds.
Parties’ submissions
In his written submissions the applicant referred to s 473EA(1) of the Act which requires the Authority, if it makes a decision, to make a written statement that sets out the decision of the Authority on review, sets out the reasons for the decision, and records the day and time the decision is made. The applicant then submitted that the Authority “did not give reasons why when the applicant returned home after over [sic] three years it was implausible and unbelievable that the armed men, presumably paramilitaries, would visit and suspect the applicant of involvement with the LTTE over that much longer period”.[21]
[21] Applicant’s outline of submissions, first-mentioned [26]
In his oral submissions Mr Hodges submitted the Authority misunderstood the applicant’s claims. The applicant, Mr Hodges submitted, did nothing more than claim that after being absent from his home for three years the first claimed 2011 incident occurred. Mr Hodges submitted that the applicant did not claim there was any connection between the 2007 incident and the first claimed 2011 incident, but the Authority incorrectly assumed the applicant did so claim. Mr Hodges also submitted that the reason the applicant claimed he was targeted in 2011 was precisely because he had been absent for three years from his home, and on returning to his home he was a new person in the vicinity, and it was that which had given rise to suspicions connected with the LTTE. Mr Hodges then pointed to what he submitted is a further error; and that is that the Authority assessed the risk of harm to the applicant on the basis of the profile “that would have been caused by the 2007 incident”, but failed to deal with the profile that arose from the applicant’s having been absent from his home for three years. Mr Hodges completed his submissions as follows:[22]
So, in a nutshell . . . the IAA has dealt with this case on the basis that it was a 2007 incident that caused the visits to the parents’ home in 2011 and subsequently. It has not dealt with the claim that the incident or the cause of the interest in 2011 was his reappearance at home after an absence of three and a-half ..... the authority does not infer, in its reasons, to the impact of that absence. It doesn’t dispel the risk that would have been created by that absence and the profile that the authority produces and then rejects, is based only on the 2007 connection with the LTTE.
[22] T8.45
In his written submissions the Minister submits the Authority did give reasons for not accepting the first claimed 2011 incident; but even if it had not given reasons that would not have rendered its decision invalid. I will refer later to the authorities on which the Minister relies. In her oral submissions, Ms Watson, who appeared on behalf of the Minister, accepted that before the delegate the applicant, in answer to a question from the delegate, gave as a reason for being targeted in the first claimed 2011 incident that the men who had attacked him assumed he was part of the LTTE because he had been away for three years. Ms Watson submits, however, the Authority referred to, and the Authority considered, the explanation the applicant offered to the delegate, but did not accept it.
Questions arising
In light of the competing submissions the following questions arise:
(a)Did the Authority misunderstand and therefore fail to adequately consider the applicant’s claims?
(b)However (a) is answered, accepting the Authority was required to give reasons, did it give the reasons it was required to give?
(c)Assuming (b) is answered in the negative, what would be the consequences?
Did the Authority misunderstand the applicant’s claims?
The applicant claimed he was attacked in 2011 when he returned to his home by an identified group of men (assailants) who accused the applicant of being part of the LTTE and that he had brought guns into the village. The applicant did not claim, as Mr Hodges submits the applicant claimed, that the assailants attacked the applicant solely because the applicant had returned to his home after an absence of three years. As recorded in the delegate’s reasons, the applicant told the delegate words to the effect: “the armed men may have thought that he was supporting the LTTE for the whole time since he was taken in 2007, as when he escaped he did not go home but went to his Aunt’s house to live”. That claim assumes the assailants had knowledge of the applicant’s involvement with the LTTE in 2007. Further, as recorded by the Authority, the applicant told the delegate words to the effect of: “when he went to live with his aunt and was not at his own home, these men would have assumed that he was working for the LTTE and they may have thought that he was supporting them and hiding some weapons”. This expressly states the applicant’s assailants would have assumed when the applicant went to live with his aunt that he was working with the LTTE. That necessarily implies a claim that the assailants were aware the applicant had been with the LTTE in 2007.
As the Minister submitted, the Authority was aware the applicant claimed before the delegate that the assailants may have assumed that the applicant’s absence was to be accounted for his continuing to be associated with the LTTE. The Authority referred to the applicant making such claim to the delegate in answer to the delegate’s question why the assailants thought the applicant had weapons. The Authority correctly understood the applicant to have claimed that the assailants attacked the applicant in 2011 because they assumed the applicant worked with the LTTE since the time he had been taken by the LTTE in 2007. The Authority considered that claim, but it did not accept it.
The Authority, therefore, did not misunderstand the applicant’s claim in relation to the first claimed 2011 incident; and it did not, because of any such misunderstanding, or for any other reason, fail to consider the applicant’s claims as it was required to do when exercising its jurisdiction under s 473DB of the Act to review the delegate’s decision not to grant the applicant a SHEV.
Extent of Authority’s obligation to give reasons
The source of the Authority’s obligation to give reasons is s 473EA(1) of the Act, which provides:
If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
Subsection 473EA of the Act must be read with s 25D of the Acts Interpretation Act 1901 (Cth) (Interpretation Act),[23] which provides:
Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
[23] BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114, at [47]-[49]
Subsection 473EA(1) of the Act, when read with s 25D of the Interpretation Act, reproduces the substance of s 368(1) of the Act (which relates to decisions the Administrative Review Tribunal (AAT) makes on review of Part 5-reviewable decisions) and s 430(1) of the Act (which relates to decisions the AAT makes on review of Part 5-reviewable decisions). As I have noted elsewhere in relation to s 368(1) and s 430(1) of the Act,[24] s 473EA(1) differentiates between four things: the Authority’s decision on the review; its “reasons for the decision”; its findings on “material questions of fact”; and “evidence or other material on which those findings are based”. These four things imply a chain of reasoning between them: the Tribunal’s decision (for example, affirming the decision under review) must be based on the reasons for decision (for example, the applicant is not a person who has a well-founded fear of persecution on the ground of being imputed with a particular political opinion); those reasons must in turn be based on findings the Authority has made on material questions of fact; and the findings themselves must be based on evidence or other material.
[24] Vo v Minister for Immigration & Anor [2017] FCCA 1170, at [36]
The Act does not define “material questions of fact”, but the expression may be taken to mean a set of facts an applicant for protection alleges which, if true, would satisfy the criteria prescribed by s 36(2)(a) and s 36(2)(aa) of the Act for the grant of a protection visa. “Findings”, too, is not a defined term; but in relation to any material question of fact, a “finding” may be taken to mean the Authority’s determination that it is satisfied the material fact exists or its determination that it is not satisfied the material fact exists. Finally, there is the notion of “reasons”. That simply means the grounds on which the Authority relies for making a finding; that is, for determining it is satisfied or not satisfied a material fact exists. What may constitute reasons for any particular determination will vary from case to case.
A finding that testimonial evidence is implausible is a finding that the fact, event, or state of affairs that is asserted by the testimonial evidence is inherently unlikely to be true. That is the meaning McHugh J gave to “implausible” in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham.[25] In that case it was submitted the Tribunal breached s 430 of the Act by failing to set out the reasons for finding evidence to be “utterly implausible”. McHugh J did not accept that submission (emphasis added):[26]
However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.
[25] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, at [67]
[26] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, at [67]. The High Court referred to this part of McHugh J’s judgment with approval in The Republic of Nauru v WET040 [No 2] [2018] HCA 60, at [38].
Did the Authority fail to give the reasons it was required to give?
The Authority found it was implausible that unidentified men from a Sri Lankan authority or a paramilitary organisation would have known the applicant and attended his home. That finding, is to be viewed in light of other matters to which the Authority referred, these being: the applicant’s having been compelled to associate with the LTTE for one week in 2007; the applicant’s residing away from his home for three years in different locations within Batticaloa without persons attending the applicant’s parents’ house to make any enquiries of the applicant; and the passing of three years after the applicant ceased any involvement with the LTTE before the assailants presented themselves and accused the applicant of being involved with the LTTE and storing guns. The Authority’s finding it was implausible that unidentified men from a Sri Lankan authority or a paramilitary organisation would have known the applicant and attended his home, therefore, is a finding that, given the matters to which the Authority referred, it was inherently unlikely that this occurred. This constitutes a “reason” for the purposes of s 473EA(1) of the Act.
The Authority also found it “unbelievable” that unidentified men took the applicant on their motorbike to a cemetery where they beat him, held a gun to his head, accused him of being part of the LTTE, for having brought weapons into the village and told him that they would be coming to collect the weapons, and when they returned he had to hand over all of the weapons or he would be killed. The word “unbelievable” is a different word to “implausible”; but it signifies the same concept although to a different degree. That is, “unbelievable” signifies a finding that the claim was inherently unlikely to a degree greater than the Authority would have considered the claim to be had it found the claim to be “implausible”. The Authority’s use of the word “unbelievable” as a reason for not accepting this part of the applicant’s claims, therefore, is a “reason” for the purposes of s 473EA(1) of the Act.
I therefore do not accept the applicant’s claim that the Authority failed to provide reasons it was required to provide under s 473EA(1) of the Act.
Consequences assuming Authority did not give reasons
The Minister submits that even if the Authority had not given reasons as required by s 473EA(1), that would not by itself have led the Authority to have made any jurisdictional error. The Minister relies on the following passage from the judgment of McHugh J in Durairajasingham (footnotes omitted):[27]
The language of s 430(1) indicates that the requirement that the Tribunal give reasons for its decision is not a requirement which goes to jurisdiction. The opening words of s 430(1) presuppose that the Tribunal has made a decision: “[w]here the Tribunal makes its decision”, and the sub-section then goes on to impose requirements to be fulfilled subsequent to that decision being made. This construction of s 430(1) was favoured in the recent decision of the Full Court of the Federal Court in Xu v Minister for Immigration and Multicultural Affairs. The requirements of s 430(1) cannot be said to be "some fact or event a condition upon which the existence of which the jurisdiction of a tribunal ... shall depend.” The requirements in s 430(1) do not go to the Tribunal's authority to “determine the issues”. Section 430(1) presupposes that the determination has already been made. It requires the Tribunal to give a written, but not a lengthy, explanation of the decision already made. The ultimate issue which the Tribunal has determined is whether it (as opposed to the Minister)[28] has been “satisfied” that the prosecutor was a refugee. Section 430 gives the Tribunal no authority to decide the issue of satisfaction. It assumes that the authority has been exercised and that a decision concerning the issue of satisfaction has already been reached. That being so, the prosecutor's argument that s 430(1) is an “integral part”, or “feeds into” the ascertainment of the Minister's satisfaction such that it is a jurisdictional fact must be rejected.
[27] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, at [70]
[28] The Tribunal re-exercises the discretion originally exercised by the Minister (or his delegate). Section 415(1) of the Act provides that “[t]he Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.”
Although the text of s 473EA(1) of the Act does not exactly replicate the text of s 430(1), the differences between the text of the two provisions are immaterial. That means that what McHugh J in Durairajasingham said about s 430(1) of the Act applies to s 473EA(1). Thus, even if the Authority had not provided reasons as required by s 473EA of the Act, that by itself would not have resulted in the Authority making a jurisdictional error.
Conclusion
For these reasons, grounds 1 and 3 fail.
COSTS
The parties’ representatives agreed that costs should follow the event, and costs should be set in the amount provided for in Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) unless the Minister’s lawyers were to inform my associate that the Minister would seek an order that his costs be set in an amount less than that provided for under the FCC Rules. My associate received an email from the Minister’s lawyer on 9 June 2020 stating that if the Minister were to succeed he would be seeking an order that costs be set in the amount of $6,200.
DISPOSITION
I propose to order that the application be dismissed, and that the applicant pay the Minister’s costs set in the amount of $6,200.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 9 April 2021
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