DQT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 303
•19 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 303
File number(s): SYG 2566 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 19 November 2021 Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – applicant making several adjournment applications in this Court on health grounds and to seek time to prepare for the hearing and obtain legal representation – adjournment applications considered and refused – template grounds for judicial review – whether the Authority made illogical or irrational factual findings or fell into error in relation to the use of footnotes and country information considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), s 473DD
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.17.02
Federal Court Rules 2011 (Cth), r.36.03Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZVZI v Minister for Home Affairs [2019] FCA 1390
SZVZI v Minister for Immigration and Border Protection & Anor [2018] FCCA 972Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 19 November 2021 Place: Sydney The Applicant: The applicant appeared in person with the assistance of an interpreter, via MS Teams. Solicitor for the Respondents: Mr Taylor, of Mills Oakley, appeared on behalf of the respondents, via MS Teams. ORDERS
SYG 2566 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQT17
Applicant
AND: MINISTER FOR IMMIGRATION, CITZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
19 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application filed on 14 August 2017 is dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $6,000.
4.Pursuant to r.17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r.36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)
JUDGE GIVEN:
By an application to show cause filed with the Court on 14 August 2017 the applicant seeks review of a decision of the Immigration Assessment Authority (Authority) which was made on 19 July 2017 and which affirmed the decision of a delegate of the Minister refusing the grant to the applicant of a Safe Haven Enterprise (Subclass 790) Visa (SHEV).
Background and applicant’s claims
The applicant is a male national of Sri Lanka who arrived in Australia on 23 April 2013 as an unauthorised maritime arrival (Court Book (CB) 144.4). He participated in an arrival interview on 30 June 2013 (Supplementary Court Book (SCB) 1-20) during which he made brief claims to fear harm in Sri Lanka arising from death threats and a physical assault by unknown men in 2012 (SCB 7).
On 16 July 2016, the applicant applied for a SHEV (CB 7-46). In a statement accompanying the application (CB 47-53), he claimed he was a Tamil born in the Eastern Province of Sri Lanka and that his family experienced problems during the civil war, including: his sister and cousin were forcibly recruited of by the Liberation Tigers of Tamil Elam (LTTE); he was subjected to frequent round-ups by the Sri Lankan Army (SLA); he was injured in a bomb blast in 2007 and required an operation to remove shrapnel from his ear; his family were displaced and spent time living in an internally displaced persons (IDP) camp; and he was once interrogated at the IDP camp for three hours by the authorities (CB 47-48).
He claimed that he began working in February 2012 as an announcer and at a particular radio station and that, in about April 2012, he began to receive death threats by telephone from unknown persons who told the applicant to stop working in the media (CB 48-49). The applicant claimed that he subsequently discovered the radio station was owned by “Karuna, leader of the Karuna faction group”. He claimed that, on an evening in mid-2012, he was physically assaulted by unknown persons and hospitalised for three days. He claimed the radio station subsequently closed and its manager went missing (CB 50).
The applicant also claimed that, in April 2013, he played a role in a particular film, which was shown in cinemas. He claimed to fear harm arising from this work due to having previously been targeted for working in the media (CB 50). He claimed that he had an imputed association with Karuna and faced harm from Karuna’s rivals “such as Pillaiyan” (CB 51).
On 4 October 2016, the applicant attended an interview with the delegate (CB 111). At the SHEV interview, the applicant raised a new claim that, in approximately September 2015, his mother answered a call to the applicant’s old mobile phone and spoke with an anonymous caller who asked about the applicant (CB 148).
The applicant provided a brief post-interview statement dated 11 October 2016 in which he raised a further new claim that, following the SHEV interview, his father told him that a lady who worked with the applicant at the radio station had received a threatening phone call in late 2015 during which the caller asked her about the applicant’s whereabouts. The applicant also claimed that one of his friends, who also acted in the film referred to at [5] above, had been assaulted and threatened by a “grease man” because of his Tamil ethnicity (CB 137).
On 21 November 2016, the delegate made a decision refusing to grant the applicant a SHEV (CB 144-158). The delegate accepted the applicant’s factual claims, but found on the basis of independent country information that he did not face a real chance of serious or significant harm in Sri Lanka on the basis of his Tamil ethnicity, imputed or actual association with the LTTE, imputed political opinion, illegal departure, or status as a failed asylum seeker.
On 25 November 2016 the decision of the Minister’s delegate was referred to the Authority for review and on the same date a letter was sent to the applicant notifying him of that referral and providing him with an information sheet and the Authority’s practice direction, which was current as at 14 October 2016. Several case notes contained in the Court Book (at CB 169-171) demonstrate that the applicant engaged with the Authority by phone on a number of occasions to seek information and clarification in relation to his review rights.
On 14 December 2016 an email was sent to the Authority by friends of the applicant attaching a four page written submission, a one page letter from the applicant with the subject line “RE: New information for consideration, in addition to existing case” and some media articles/ country information. As the one page document indicated by its title, the applicant raised new claims, namely, that after the decision of the delegate he received information from his mother in Sri Lanka that she had received a threatening phone call from a person whom she believed to be involved in the 2012 attack on the applicant, that four days after the telephone call a person came to the family home in the early hours of the morning knocking and that the family did not feel safe to answer.
On 19 July 2017 the Authority notified the applicant of its decision made the same day affirming the decision of the delegate not to grant the SHEV. Before setting out the applicant’s claims in detail, the Authority set out the information before it and determined that the new claims of the applicant were new information which could be considered pursuant to s 473DD of the Migration Act 1958 (Cth) (Act) because it could not have been provided prior to the delegate’s decision, and the Authority was satisfied that there were exceptional circumstances to warrant its consideration.
In relation to those of the country information extracts which pre-dated the delegate’s decision, the Authority noted that there was no explanation proffered as to why the articles could not have been provided earlier, that the information contained within them was not personal information about the applicant and found therefore that it would not consider those items. In relation to the article which post-dated the delegate’s decision, the Authority was satisfied that the article could not have been given to the delegate. However, the Authority found that it did not lend anything to the assessment of the applicant’s claims and therefore it did not justify consideration pursuant to s 473DD of the Act.
The Authority accepted many of the applicant’s claims of its decision, namely:
12. The applicant claims, and I accept, that he was born in an area that was under control of the LTTE during part of the war and after relocating with his family to a nearby village he and his family and the other Tamils in the area were subjected to “round-ups” and “cordon and search” operations undertaken by the SLA. I accept that during these manoeuvres the applicant and his family were subjected to abuse as they were suspected of being supporters of the LTTE.
13. The applicant claims, and I accept, that his cousin was a member of a special unit in the LTTE and that he died before 1993 when the applicant was born. I note there is no evidence to indicate that the Sri Lankan authorities are aware of the applicant’s cousin’s involvement with the LTTE. I also accept that the applicant’s sister and other girls were forcibly taken by the LTTE in February 2007 and rescued after three days by his mother and aunt. I accept that the SLA learnt of the applicant’s sister’s involvement with the LTTE and the family were subject to monitoring and questioning about their links with the LTTE for approximately five months after this incident. I note that neither the sister nor any other members of the applicant’s family were detained by the Sri Lankan authorities because of the applicant’s sister’s experience with the LTTE.
14. I accept that the family were relocated to an IDP camp in March 2007 and remained there until June 2007. I also accept that the applicant was interrogated about his links with and knowledge of the LTTE and was physically and verbally abused and threatened by the CID during this time.
15. I accept that in 2007 the applicant suffered shrapnel injuries from a bomb blast and was hospitalised for around forty days.
16. I accept that the applicant has suffered harm in the past during the war in Sri Lanka. However his application for protection requires an assessment of the chance of the applicant being harmed now and in the foreseeable future in Sri Lanka. In making this assessment I have considered the applicant’s past experiences of harm and also the following information.
Noting that the applicant had not been arrested or detained by the Sri Lankan authorities for more than three hours either during the war or at all, the Authority took the view that the applicant was not suspected by authorities of being a member or an active supporter of the LTTE, notwithstanding his links to the LTTE by reason of his sister’s brief period of recruitment in 2017 or his cousin’s membership in an LTTE special unit.
The Authority took this view also irrespective of some past questioning and abuse from the Sri Lanka authorities and despite the fact that he was a Tamil who lived in and close to areas which had previously been under LTTE control, the Authority had regard to country information in reach these conclusions. Having assessed various independent country information and having regard to the individual circumstances of the applicant, including his age, family situation and personal history, the Authority was not satisfied that the applicant was, or would be, imputed to be a member of the LTTE or involved in any activity aimed at Tamil separatism.
In relation to the applicant’s claims to fear harm because of his past involvement with media, the Authority accepted that the applicant had an interest in media and film and that he had worked for a radio station in Batticaloa for approximately seven months in 2012. The Authority accepted that the applicant had received threatening phone calls in April and May 2012, that persons came to his home to question his mother and that following this he was assaulted on his way home from work in June 2012. The Authority accepted as “plausible, although speculative” that these threats and the assault to which he was subjected related to rival factions of the Tamil Makkal Viduthalai Pulikal (TMPV) as claimed.
The Authority noted that it was plausible that if the radio station was owned by Karunas as claimed, then members of a rival faction may have been responsible for threats and assaults against the applicant and others who were involved with the radio station. The applicant claimed that he had subsequently heard that the radio station had closed down and that its manager was missing, and the Authority accepted that this may be so.
However, beyond that, the Authority had concerns regarding the credibility of certain claims pertaining to the applicant’s involvement in the radio station including that his father had been receiving threatening phone calls asking about the whereabouts of the applicant and of the station manager, given that the station had closed and the manager was apparently missing.
In relation to the new claim which the Authority was prepared to consider pursuant to s 473DD, it expressed doubts about the credibility of it and found that the claim itself, and the lack of connection between the subject matter of the phone call and the applicant (or any previous threats against him) was very speculative.
In particular, the Authority found it implausible that the applicant or his family would have been the subject of ongoing threats four years later given that the station had closed and that, in any event, the applicant had actually acceded to the demands of the phone calls he received and stopped working at the radio station. The Authority took into account the effluxion of time between those events and any alleged further threats, that the applicant had not worked at the radio station more than five years and that his only role as a film actor was also more than four years earlier.
Accordingly, the Authority considered the chance that the applicant would face harm for either of these reasons from the Sri Lankan authorities, paramilitary groups or others to be remote. The Authority was satisfied that the applicant would have effective State protection insofar as he could report matters to police, and that action would be taken by them.
The Authority also noted that the applicant was trained in plumbing and electrical work and was not restricted to only working in the media. The Authority found that the applicant’s claimed fear of harm due to his involvement in media and film was not well-founded. The Authority considered the applicant’s claim that his friend had been assaulted by a “grease man” but found that given the applicant had not claimed that either he or his family had personally been harmed or threatened (and by reference to independent country information which indicated that “grease man” activity had diminished), the applicant did not face a real chance of harm in that regard. Nor did the Authority accept the applicant faced harm because Sinhalese were being encouraged to migrate to the north and east of Sri Lanka, which included Batticaloa, from where the applicant hailed, in order to drive out Tamils and claim land.
In relation to whether the applicant would be harmed on return as a failed asylum seeker who had departed Sri Lanka illegally, the Authority considered relevant independent country information about the treatment of returned prisons to Sri Lanka and noted that the applicant had not claimed to be a member or supporter of the LTTE and its earlier finding that he would also not be imputed as such. The Authority observed that the applicant had not claimed to face outstanding criminal charges or to have been involved in any aspect of people smuggling.
The Authority was satisfied that in regard to these matters the applicant would not be detained for a lengthy period of time on return as a person who departed Sri Lanka illegally. The Authority had regard to the applicant’s relatively young age and was overall satisfied that the applicant would undergo routine processing and that the fine and conviction for his illegal departure would not amount to serious harm. The Authority was satisfied that any penalties or procedures to which the applicant would be subjected on return would be applied in a non-discriminatory way under a law of general application and did not constitute persecution for the purposes of the Act.
The Authority considered the applicant’s claims cumulatively and were satisfied that they did not give rise to a real chance of harm or serious harm on return. Relying on its anterior factual findings, the Authority was also satisfied that the applicant would not face a real risk of significant harm on return to Sri Lanka.
Application to this Court
By an application to show cause filed with the Court on 14 August 2017 the applicant now seeks judicial review of the Authority’s decision.
On 17 November 2017 the applicant appeared before a Registrar of this Court with the assistance of a Tamil interpreter for directions. On that occasion, the Court made orders by consent which included a grant of leave to the applicant to file and serve an amended application giving complete particulars of each ground of review relied upon by 2 February 2018. As noted in the Minister’s written submissions, in the four years since that order was made, no amended application has been filed.
At the outset of the hearing today the applicant claimed this was because that he had not received a Court Book at the time it was filed and that he had been waiting for the Minister’s solicitors to write him a letter to explain to him that the time had come to file his amended application. The applicant said he did not understand fully what had occurred at the first Court date, and he was not given any advice.
I note, and as will be detailed shortly, that the applicant has (with some diligence) managed to engage with the processes and procedures of both the Authority and this Court, together with the assistance of other persons. At the hearing I was provided by the Minister’s solicitor with a letter from them to the applicant sent to his address for service at the relevant time which demonstrates to me that the applicant was sent the Court Book. I marked the letter “MFI1” and I accept that it was sent to him.
In my view, the applicant was aware that he was required to file an amended application at the relevant time, and did not do so.
Under the heading “Grounds of Application” the applicant says as follows (errors in the original):
I lodge my judicial review application myself.
I know that I need to seek a barrister’s opinion on my grounds stated in my court application and to find other legal errors which occurred in the IAA’s decision dated 19 July 2017.
When I read the decision and my assessment of the IAA’s decision I have found that legal errors appear in the reasoning given for refusal of my protection visa by the IAA.
Grounds
Some findings, inferences, conclusions and reasoning of the IAA being occurred in the absence of evidence and/or supporting materials based on foot notes cited below the reason and findings in the IAA’s decision.
A reasonable IAA reviewer might reasonably arrive at a divergent conclusion on all the information and evidence before the IAA.
Particulars
The IAA’s reasoning and conclusions are substantially based on foot notes cited below the reason and findings in the IAA’s decision.
I need my protection visa interview CDS to listen to and the transcript and I also need to closely read the full evidence cited as footnotes in the IAA’s decision which will enable me to provide particulars of my grounds in my Amended Application when the court order me to do so.
On 22 October 2021 this matter was brought into my docket and was listed for hearing before me at 10.15am today, 19 November 2021, with consequential orders made for the filing of written submissions by both parties. There was some difficulty in sending a listing notice to the applicant initially because, prior to his being in immigration detention from where he appears today, the applicant tells me that he was incarcerated from September 2020 until September 2021 in the Parklea Prison. The applicant says that while in Parklea Prison he still was able to update his address for service details with this Court.
When a bounce-back email was received by the Court Registry in response to the listing notice, alternate arrangements were made to send to the applicant via post at the Villawood Immigration Detention Centre a copy of the listing notice. This was on or about 25 October 2021.
Adjournment Requests
It is clear to me that at least by 4 November 2021 the applicant was aware of today’s hearing, because he wrote to the Court on 4 November 2021 by email, requesting an adjournment in the following terms (errors in original):
Your Honour,
I am writing from Villawood immigration detention after spending 8 months in prison and couple of months in detention. As such I have been going through mental health as well as physical health problems for which I am taking daily medication, counseling, which helps me but also have side effects.
This unexpected incarceration has exacerbated my previous PTSD that I struggled with anxiety, depression and stress as I came facing persecution in Srilanka.
Furthermore, the date that was given to me as 19th November 2021 came to me as a surprise without giving me adequate time to prepare for the case.
My lawyers, RACS also sent a message that they regret unable to appear for my case as they need at least 6 months time to prepare for the case. I couldn’t find another private lawyer because last previous 2years covid19 effect it my income either as the time was limited.
I won’t be able to appear for myself. As such I am requesting you to grant me at least 6 moths time to get ready for my case. As this is my last chance to prove myself as genuine refugee please grant me this request for a 6 months postponement of my hearing so that mentally and physically I will be fit enough and for the lawyers to prepare.
I will be ever so grateful.
I await a favourable response.
Thanking you
The Minister opposed that adjournment request and the Registry responded to the applicant, at my request, to say at that stage I considered that the matter should remain listed for hearing before me today, noting that the proceedings had been on foot since 14 August 2017 during which time the applicant did not appear to have been represented by “RACS” who he specifically referred in his application for an adjournment or by any other solicitor.
The response from the Registry also noted the various submissions pertaining to the applicant’s mental health and wellbeing but, given that the applicant said that these would be exacerbated by his detention, I expressed a preliminary view that it was difficult to see how a further adjournment of six months would have anything other than a worsening effect on those factors.
While I refused the adjournment at that juncture, the applicant was told that he would be welcome to renew the application for an adjournment, together with any proper medical evidence in support, at the commencement of this hearing should he choose to do so. On 15 November 2021 the applicant emailed the Registry attaching a document which was a partially completed Affidavit form, together with a bundle of documents which I have taken as being intended to be an Affidavit with annexures.
The Affidavit form was not executed insofar as while it was signed by the applicant it was not witnessed and nor were any of the annexures. The only paragraph in the body of the Affidavit form states, “I am providing all my proper medical evidence in support for seeking adjournment.” The applicant has attempted to place these documents before me quite diligently and formally and is to be commended for doing so.
I accepted the Affidavit form and bundle of documents as an exhibit which I marked Exhibit “1A” and I have proceeded to treat it as a further application for an adjournment of today’s hearing. As noted before, the applicant is presently in immigration detention and he appeared before me via video link due to the ongoing COVID-19 pandemic restrictions with the assistance of a Tamil interpreter. The Minister was represented by a solicitor.
When invited to speak to the bundle of documents and give his reasons for wanting the adjournment, the applicant made the following submissions. He said that his health condition “was very bad in relation to his mental health”. He said he suffers from anxiety and depression. The applicant said that he has no lawyer and, in the past two years because of COVID-19, he has been unable to work properly. He then went on to say that he had in fact received advice from and seen many lawyers in the past years.
When asked by me where I would find evidence of his anxiety and depression in the evidence that forms Exhibit “1A”, the applicant said that there may have been a prior report but the current report says that he is getting better. He also made reference to taking anxiety medication but when I questioned him about this, he stated he had previously been on anxiety medication which had first been reduced and then ultimately replaced with melatonin for a sleep issue he is having.
The Minister opposed this latest adjournment request and said that given the application has been on foot for four years, this was ample time for the applicant to prepare his case, notwithstanding the issues surrounding incarceration, coronavirus and now being in immigration detention.
In respect of the medical evidence, the Minister submitted that there was no explanation before the Court as to why it was that the applicant was unable to participate in today’s hearing. In respect of the application insofar as it was put on the basis that the applicant wished to have a further opportunity to retain a lawyer, the solicitor for the Minister pointed out that the applicant had not set out any steps that he would further take in order to obtain a solicitor except for saying that he had consulted RACS but they required a further six months. I have no evidence before me that RACS has in fact been consulted or let alone retained, other than that statement by the applicant. The solicitor for the Minister said the applicant had not identified any tangible utility in the adjournment being granted.
In reply, the applicant said that for two out of the four years in which his application has been on foot “everybody knows how difficult coronavirus has been”. The applicant says that when he was in prison, with the help of a welfare officer, he managed to update his address records. He also said that while he was in prison he did not have internet access and that was why he was unaware of today’s hearing. Given the dates during which he was incarcerated, I do not accept that the time in which he was in prison hampered his ability to prepare for today insofar as he was not aware of it. That is because the matter was not listed until 25 October this year, which was after the applicant left prison and was already in immigration detention.
I have reviewed the documents which form Exhibit “1A” and, in particular, an assessment form completed by New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) (assessment form) which pertains to the applicant. The assessment form document is dated 2 November 2021 and is therefore only about two weeks old.
This court is not medically trained and so the assessment form has been considered using a commonsense and lay interpretation of its content. The assessment form records some historical matters and seems to indicate that aside from paracetamol, the applicant has been taking melatonin for some insomnia issues “with good effect”. The assessment form records under the heading Mental State Exam that the applicant presented two weeks ago as neat and tidy, had a settled, pleasant and co-operative behaviour and normal speech. His affect was recorded on the assessment form as being reactive and his thought form was marked as anxious but also normal.
The applicant was assessed as having nil perceptual disturbance, good insight and being orientated. The assessment form records that the applicant recounts no personal or family history of mental illness and that when he was asked whether if STARTTS could provide him with someone to whom he could talk he would consider this, he responded, “No”. The assessment form also records that when asked if there was anything causing the applicant concern at the time of the assessment he also responded, “No”.
The assessment form records that when the applicant was asked whether he had people in detention to whom he could talk about any problems or concerns he responded, “Yes”. The assessment form records an assessment of a low risk for self-harm, suicide and harm to and from others. Importantly, from the perspective of assessing whether or not the matter could proceed today, the form does not state or even suggest that the applicant cannot participate in today’s hearing for any reason, as the Minister’s solicitor noted.
I will also add to this my own observation, which I shared with the applicant during the course of the hearing, that his demeanour today indicates to me that he is well-presented, calm, articulate and engaging. He did not seem to have any difficulty, to my observation, in participating in the hearing. The other documents in Exhibit “1A” pertain to other medical treatments that the applicant has received in the past years, some of which relate to physical injuries and accidents and, again, there is nothing emanating from these to readily suggest that the applicant cannot meaningfully participate in today’s hearing.
In relation to the suggestion that the applicant would be assisted by an adjournment because immigration detention is having a negative effect on him, my preliminary view in relation to this remains. It seems inconsistent to say that the applicant would benefit from an adjournment because being in immigration detention is hampering the preparation of his case. There is no material before me to suggest that the applicant would be released from immigration detention (at least) absent a result in this case.
The applicant has also said he wants to seek legal representation. In this regard, I take account of the following. Firstly, there is no solicitor on the record nor has there ever been in the life of these proceedings. In his application to the Court in 2017, the applicant said that he understood that his case would be assisted by legal representation when he stated, “I know that I need to seek a barrister’s opinion on my grounds stated in my court application and to find other legal errors which occurred in the Authority’s decision dated 19 July 2021”.
Yet, there is no evidence before me regarding any steps that the applicant has taken specifically to obtain legal representation and I do not accept that the COVID-19 pandemic, while inconvenient and posing some additional challenges to litigants, prevented the applicant from doing so for two years. I am also not satisfied, given the applicant has had four years in which to seek such legal assistance during the first two of which he was neither incarcerated nor in immigration detention, that further time would yield a different result.
In my view and as submitted by the Minister there is no particular utility in adjourning the matter. Rather, there is a public interest in the matter being heard and determined not only in terms of the time and resources of the Court and the Minister’s solicitors but also in respect of other litigants in this Court by reference to the overarching purpose of the Court’s rules. These factors weighed against an adjournment being granted.
Lastly, it will be observed that there is a reference in the final sentence of the grounds of review to the applicant not having had access to the audio recording of his protection visa interview. As will be discussed later, this is a template ground and it may not have been intended to be raised by the applicant. In any event, I asked the applicant in the course of the hearing whether or not he had taken any steps to seek this audio recording from the Minister’s solicitor other than the statement in the application. He said that he had not.
In my view, for reasons similar to the lack of utility for further time to find a lawyer, I am also not satisfied that giving the applicant further time to obtain the audio of his SHEV interview for some sort of sifting process in the hope of identifying an error would be useful. Accordingly, I refused the applicant’s adjournment request and the substantive hearing proceeded.
Grounds of Review
It will be observed from the grounds of review set out that they are in a narrative form.
The Minister says that the application does not contain any properly particularised grounds and that the highest it can be taken as is disclosing one intelligible allegation of jurisdictional error, namely, that the Authority’s decision lacked an evidentiary basis.
I disagree in some part with this characterisation and it seems to me that the applicant probably can be taken as making the following complaints:
a.That the Authority’s decision did lack an evidentiary basis and/or was legally unreasonable and
b.That the Authority’s decision is in some way affected by jurisdictional error because it is substantially based on footnotes cited in the decision.
It transpires that the ground has been raised in the court previously: see SZVZI v Minister for Immigration and Border Protection & Anor [2018] FCCA 972 per Judge Nicholls. I drew the attention of the solicitor for the Minister to this in the course of the hearing. In that case, ground 2 before the Court was made by reference to the Tribunal and not to the Authority but the ground that is included, in SZVZI was otherwise largely identical and also included a complaint about the interview audio not being provided (see [54]-[55] above).
The Minister has distilled from the application for review that the applicant alleges the Authority’s decision lacks an evidentiary basis. In SZVZI, this Court considered the matter through broader terms as being whether the decision was legally unreasonable, such that it was illogical or irrational and that no rational person could reach the same decision based on the material before it, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
When asked to address this ground orally, the applicant said that he gave all of his documents to the Authority and that he “submitted everything”. He said that “all of the decisions that they had taken did not specifically refer to his individual circumstances”. He said that he came here by boat, and the Authority accepted the claims of some of the other people who came by boat, and had also accepted some of his claims. He also said that the Authority did not take into account his individual circumstances.
To constitute jurisdictional error based on illogical or irrational findings of fact or reasoning or to lack an evidentiary basis, generally speaking, requires this Court to be satisfied that there was an extreme illogicality or an irrationality in the Authority’s reasons “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 where the Full Court, in turn, cited the principles considered by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52], [54]-[55] inclusive:
52. As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22–23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
54. The Minister’s submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137–138 [151]–[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]–[62].
55. Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137–138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT(2010) 189 FCR 577 at 598–599 [83]–[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship(2013) 135 ALD 276 at 291 [66]; SZWCO at [64]–[67].
Having regard to the entirety of the Authority’s reasons, I am not satisfied that its decision involved extreme illogicality or lacked an intelligible justification. Rather, I agree with the submission for the Minister that the Authority’s findings flowed logically from, and were reasonably open to it on, the material available before it. The Authority had regard to all the applicant’s claims including the new claim that he made after the delegate’s decision.
The Authority accepted a good many of the applicant’s claims (see [13] above) and in this regard it should be said that it is not the case, as alleged by the applicant, that it did not take into account his individual circumstances.
It is true that the Authority had regard to country information regarding the situation in Sri Lanka and that it was overall not satisfied that the applicant would be imputed with the profile he claimed, nor that he would suffer harm as required under the Act, either in relation to the refugee or complementary protection criteria.
As noted, the Authority did inform itself by reference to an array of independent country information upon which it based a number of its findings. It was plain that the applicant does not agree with the Authority’s reliance on the independent country information and where it preferred independent country information or the independent country information flowed into its findings, the applicant is dissatisfied with the findings themselves. To the extent that the ground of review alleges that the decision of the Authority lacked an evidential basis or by reason thereof was legally unreasonable, the ground is not made out.
Furthermore, this does not give rise to a jurisdictional error in and of itself. The Minister submitted that if the independent country information with which the applicant sought to take issue was that which he provided the Authority after the matter was referred to it, then the Authority was prevented from considering this pursuant to s 473DD of the Act for the reasons that it gave. I agree with the submission of the Minister that there was no error in the manner in which the Authority assessed the information that was put before it by the applicant pursuant to s 473DD.
In relation to the independent country information, and as the Minister notes, it is well-established that the choice of country information, its assessment and the weight to be given to it were matters uniquely for the decision maker and this Court cannot substitute its own view of the material: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
I am satisfied that there is no error in the manner in which the Authority had regard to independent country information and, to the extent that the ground of review asserts error of this kind, it must fail.
As noted above, by his grounds of review (albeit template grounds) the applicant twice takes issue with the Authority’s use of footnotes. This could be construed as a complaint regarding the use of footnotes simpliciter, or it could also be an attack on the Authority’s use of country information and also that the applicant did not have access to his SHEV interview audio but I have already addressed this above. The applicant clarified this in oral submissions by saying that he felt that whatever documents were submitted by him to the Authority were not cross-checked and that the Authority did not consider his particular circumstances.
I asked the applicant whether his complaint was that the documents in the footnotes were independent country information in preference to his own claims and/or evidence and he seemed to indicate that this was so. To the extent that the applicant alleges that the information in the footnotes is independent country information and not his own evidence, then I again refer to NAHI (supra) and find that this was a matter entirely for the Authority.
The solicitor for the Minister submitted today that the Authority considered independent country information and the entirety of the applicant’s own evidence both in footnotes and in-text references. I note also that while the Minister’s written submissions in this case were silent in relation to the footnotes issue, in SZVZI the Minister submitted that the use of footnotes was entirely orthodox and variously sourced the evidentiary basis for propositions and information.
I would agree and say that where decisions and reasoning are intended to be read by applicants who may not be legally represented and/or who may not be fluent in English, it can be advantageous to not have in-text references such that the decision is cluttered with citations and references which may make the flow of the reasons even more difficult to understand.
The footnotes to the Authority’s decision do actually form part of its reasons, to the extent that the applicant takes issue with the fact that they are cited below the findings and reasons of the Authority. In my view, there was nothing unusual let alone erroneous arising from the Authority’s use of footnotes and this does not give rise to a legal error. I note for completeness that an appeal from SZVZI was dismissed: see SZVZI v Minister for Home Affairs [2019] FCA 1390, per Collier J, in particular paragraphs [10] and [28]. Accordingly, to the extent that the application takes issue with the Authority’s use of footnotes, the ground must also fail.
For the foregoing reasons, I am satisfied that the decision of the Authority is not affected by a jurisdictional error as alleged by the applicant or at all and, accordingly, I will dismiss the application.
The Minister sought an order consequent upon the dismissal that the applicant pay costs fixed in the sum of $6,000. When asked to comment on whether or not he should pay costs and the amount, the applicant said that he was in immigration detention and asked several questions about his ability to pay and whether this would preclude him from being able to appeal from this decision while the debt remained outstanding. I explained that the applicant could raise these matters with the Minister’s solicitor but were not otherwise matters that I can relevantly take into account in relation to costs. In my view, it is appropriate that the applicant should pay the Minister’s costs and I also consider the amount of $6,000 to be reasonable, having regard to the Court scale which is presently $7,853.
As I explained to the applicant prior to delivering my reasons for judgment orally (and again at the conclusion of the hearing) I will also make an order which prevents time from running while the written reasons are being settled, so that he is not disadvantaged by the absence of a written judgment should he choose to pursue an appeal.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 30 November 2021
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