DUT20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 431
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DUT20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 431
File number(s): BRG 458 of 2020 Judgment of: JUDGE EGAN Date of judgment: 29 May 2023 Catchwords: MIGRATION - Whether failure by Tribunal to provide applicant with documents constituted jurisdictional error – whether Tribunal failed to properly exercise its jurisdiction – whether Tribunal actively intellectually engaged with the issues before it – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss. 109, 375A ,424A, 424AA,
438Cases cited: Minister for Immigration and Board of Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Board of Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v Khadji (2010) 190 FCR 248
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of last submission/s: 20 April 2023 Date of hearing: 20 April 2023 Place: Brisbane Counsel for the Applicant: Mr P Berg Solicitor for the Applicant: Jacobs Legal Counsel for the First Respondent: Ms E Hoiberg Solicitor for the First Respondent: Sparke Helmore Lawyers The Second Respondent: No Appearance save as to costs ORDERS
BRG 458 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUT20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
29 May 2023
IT IS ORDERED THAT:
1.The Second Further Amended Application for Review filed on 1 December 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs to be agreed, or failing agreement, to be taxed pursuant to r. 22.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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 Egan
Introduction
The female applicant (the applicant) was a citizen of Sri Lanka who arrived at Christmas Island as an Irregular Maritime Arrival on or about 11 May 2012. She then had with her a male child who was aged about 10 years.
On or about 20 June 2012, the applicant applied for a Protection Visa (Class XA).
On 12 March 2013, a delegate of the Minister accepted the applicant’s claims for protection and she was granted the Visa. [1]
[1] Court Book (CB) pp. 97 – 110.
On or about 2 January 2015, the Department received information from an informant to the effect that the applicant’s husband was alive; that he was living in Sri Lanka; that he wished to make contact with his son in Australia; and that the applicant had made false claims in her visa application. Inquiries by the Department revealed that the applicant’s husband was living at the same address - with his and the applicant’s two other children - as that which the applicant had lived at the time immediately prior to her leaving Sri Lanka.
On 10 January 2017, a Notice of Intention to Consider Cancellation (NOICC) under s. 109 of the Migration Act 1958 (Cth) (‘the Act’) dated 10 January 2017 was sent to the applicant at an address in the suburb of Moorooka in Brisbane. [2] On 25 January 2017, a Further NOICC of the applicant’s visa under s. 109 of the Act was sent to the applicant at an address in the suburb of Indooroopilly in Brisbane. [3]
[2] CB pp. 111 – 120.
[3] CB pp. 121 – 130.
Each NOICC included the following conclusion:
“I consider that you have not complied with Section 101(b) of the Migration Act in relation to the answers you provided in your Protection visa application, in particular to questions 43, 44, 45, 46, 47 and 48 of Form 866C and to answers provided in your statement of claims declaration dated 20 June 2012 in which you declared that you were Tamil woman who was being persecuted for your imputed political opinion, and was vulnerable because you did not have the protection of your husband who you claimed was missing; because at the time of your Protection visa application your husband was not missing and you were residing at his address until you departed Australia. Your protection claims were based on your husband being missing, however as the department has received information that this was not the case, I consider that this suggests that you do not hold an adverse profile for Sri Lanka as claimed by you in your protection visa application.”
The applicant sent a response to the Notices via her lawyers and migration agents by a letter from Rasan T. Selliah & Associates dated 16 February 2017. [4]
[4] CB pp. 138 – 165.
On 4 April 2017, a letter dated 4 April 2017 was sent to the applicant as an International Treaties Obligations Clearance Letter (ITOCL). The summary in that letter was recorded as follows:
“Ms [name omitted] has previously claimed that her husband disappeared in 2008. She has now submitted evidence that her husband died in October 2016. In light of the information put to Ms [name omitted] in the NOICC and in the absence of credible evidence to the contrary, I am satisfied that Ms [name omitted] did have the support of her husband at the time of her departure from Sri Lanka to come to Australia. I accept that her husband died in October 2016 and that therefore Ms [name omitted] would no longer have her husband’s support on return to Sri Lanka. However, I am satisfied that Ms [name omitted]’s two adult sons reside in Sri Lanka and that she would have a residence to return to and familial support male protection on return to Sri Lanka.”
The ITOCL also recorded the assessment that there was not a real chance that if the applicant returned to Sri Lanka she would be persecuted by reason of her race, religion, nationality, membership of a particular social group, or for her political opinion. A further assessment recorded was that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that she would suffer significant harm.
On 24 May 2017, a delegate of the Minister advised the applicant in writing that her protection visa was cancelled as and from 24 May 2017 under the provisions of section 109 of the Act. [5]
[5] CB 173 – 175
On 14 July 2020, the Administrative Appeals Tribunal (‘the Tribunal’) affirmed the decision of the delegate.
On 10 August 2020, the applicant filed an Originating Application for Review of the decision of the delegate by the Tribunal.
Grounds of Review
At the hearing of this matter before the court, the applicant relied upon a Second Further Amended Application for Review filed on 1 December 2021, the grounds of which were as follows:
1.The tribunal has failed to exercise its jurisdiction. The decision does not consider the applicant's claims for protection. The applicant had made claims for protection including claims that are independent of her husband. The decision relies on the International Treaty Obligations Clearance Letter (ITOCL) for the consideration of the applicant’s claims for protection. The tribunal ought to have reviewed the ITOCL to ensure the claims for protection by the applicant were considered. The tribunal ought to have made its own determination of the protection claims of the applicant where the ITOCL had not considered them. Moreover, the ITOCL does not consider certain of the applicant's claims for protection. including at least:
•As a Tamil; and
•As a person imputed to support the LTTE in her own right.
2.Further, the ITOCL fails to afford the applicant procedural fairness in rejecting the claim to fear persecution as an unaccompanied woman. The ITOCL finds the applicant will have male protection from her 2 adult sons. That finding is adverse and was not put to the applicant for her comment by the delegate or the tribunal.
3.The tribunal articulates its suspicions with the applicant’s claims to have no news, hence knowledge, about her husband's location. However, the tribunal’s mere suspicion is not sufficient to establish the ground for cancellation. A real state of satisfaction must be reached by the tribunal. The visa cannot be cancelled because the tribunal has identified a possible ground which the applicant has not been able to rebut.
At [10] of its reasons, the Tribunal relevantly identified the question for its determination, and set out the alleged non-compliance by the applicant identified in the NOICC letter, as follows:
“Was there non-compliance as described in the s.107 notice?
[10]The issue before the Tribunal is whether there was non-compliance in the way described in the s. 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s. 107 notice was non-compliance with s. 101(b) in the following respects:
(a) at question 43 of Part C of the form 866, which states: “why did you leave that country?”, she answered: “please see statutory declaration attached”. In that document, she stated that she left Sri Lanka because she feared being persecuted because she is a Tamil woman whose husband is missing and this also put her at risk of sexual assault; whereas in actual fact her husband was never missing and that she continued to have the protection of being in a family unit until she decided to depart Sri Lanka;
(b) at question 44 of Part C of the form 866, which states: “have you experienced harm in that country?”, she answered: “please see statutory declaration attached”. In that document, she stated that she was harassed by the police and the CID after she made enquiries about her missing husband; whereas her husband was not actually missing but rather he was residing with her, suggesting that her claims regarding the circumstances of the claimed harm and harassment did not happen and are incorrect;
(c) at question 45 of Part C of the form 866, which states: “what do you fear may happen to you if you go back to that country?”, she answered: “please see statutory declaration attached”. In that document, she stated that she feared being persecuted because she is a Tamil woman whose husband is missing and that this also put her at risk of sexual assault; this is incorrect as in actual fact her husband was never missing and that she continued to have the protection of being in a family unit until she decided to depart Sri Lanka;
(d) at question 46 of Part C of the form 866, which states: “what do you think will happen to you if you go back?”, she answered: “please see statutory declaration attached”. In that document she stated that the Karuna group and the army believe that she was supporting the LTTE and that she believed that she would be persecuted for this and also because she was a Tamil woman whose husband was missing; whereas her husband was not actually abducted by anyone, suggesting that the circumstances on which she based her claims were incorrect;
(e) at question 48 of Part C of the form 866, which states: “do you think the authorities of that country can and will protect you if you go back? If not, why not?”, she answered: “please see statutory declaration attached”. In that document, she stated that the Sri Lankan government could not protect her because they are the ones persecuting her for her and her husband’s imputed political opinion; whereas her husband was never abducted and continue to reside safely in his residence with her and her children, suggesting that he did not have an adverse profile and Sri Lanka. This suggested that the circumstances on which she based her claims were incorrect.”
By Grounds 1 and 2, it was asserted on behalf of the applicant that the applicant was denied procedural fairness in not having had the contents of the ITOCL letter put to her during the course of the hearing, such that she might have had an opportunity to respond to its contents. It was also asserted that the Tribunal had erred by failing to comply with the provisions of ss. 424A and 424AA of the Act by relying upon the contents of the ITOCL when arriving at its decision.
First, the grounds of review do not seek to challenge the validity of the ITOCL letter on procedural fairness grounds. In those circumstances, the question of whether or not the applicant was denied procedural fairness in the preparation of the ITOCL letter was not a matter that was a live issue before the court.
Second, it was conceded on behalf of the first respondent that, in failing to provide to the applicant a copy of the ITOCL letter, or otherwise give to the applicant an opportunity to comment on or respond to it, the Tribunal did not comply with the provisions of s. 424A of the Act. Section 424A of the Act relevantly provided as follows:
“Section 424A - Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”
Having conceded the question of procedural unfairness, it was submitted on behalf of the first respondent that any denial of procedural fairness was not material because, even if procedural fairness had been afforded to the applicant in respect of the ICTOL letter, that could not realistically have resulted in the Tribunal arriving at a different decision. [6] It was submitted on behalf of the applicant that because the ITOCL did not address questions of Tamil ethnicity imputed political opinion, the Tribunal had erred by failing to put those matters to the applicant during the hearing. However, at [45] of its reasons, the Tribunal implicitly found that the applicant would be of no interest to the Karuna Group or the Sri Lankan authorities by reason of her being a Tamil. The Tribunal also found that the applicant had no reason to fear persecution on the basis of any imputed political opinion. It made such findings after it had actively intellectually engaged with the issues before it, and its findings were based upon all of the evidence before it, as found in its reasons at [30] – [46] inclusive as follows:
[6] Minister for Immigration and Board of Protection v SZMTA (2019) 264 CLR 421 [45/46]
“The applicant’s evidence
[30]The applicant relies upon her statement dated 5 June 2017, composed following the decision to cancel her visa. This statement is largely consistent with the submissions made on her behalf to the Department, as narrated in paragraph 23, although with more detail. She maintains that, on the occasion of her husband’s disappearance in October 2008, she conducted a search for him with a male relative, during which she learned from neighbours that she was being sought by two men in uniform. She claims that over the next few days, she received menacing calls and information as to where her husband was being held. She claims that threats made in these calls escalated to the point where she left her children with her parents and travelled to Malaysia.
[31]The applicant claims that, just before she left, she locked the house and shop that had been the marital home. While she was away, her mother maintained and organised repairs for the house is required. She claims that her mother neither sought nor heard from the husband. In 2010, her parents arranged for the house to be leased. At some time not known to her, she says that her husband’s sister demanded that the tenants leave and then moved into the property with her family. The applicant says that, during this period, her sons lived with her parents and never visited the marital home on any occasion and did not see their father at any time. On her return from Sri Lanka, she says, she lived with her parents and sons at her parents’ house and never visited her former marital home.
[32]While in Malaysia, a person by the name of [name omitted], a friend of her husband’s, arranged for her to work in an orphanage for approximately two years. [name omitted] had also made her Visa and travel arrangements.
[33]December 2011. She provides some details about the as processed, having returned without a passport. She provided her parents address and telephone number to the authorities (she says that she was interviewed by the CID at the airport). She then relates some four or five incidents of being interrogated by the CID, which she says involved physical mistreatment and threat of imprisonment and torture. She was accused of raising money for the LTTE. She says she then moved to Kandy to stay with distant relatives of her husband (who she says had had no contact with him either). After three weeks, she moved to Hatton and then to Colombo while her father made arrangements to take her youngest son with her to India.
[34]The applicant flew with her youngest son from Katunayake to Trichy on [date omitted], where she stayed for 15 days. During this time, she met a person by the name of [name omitted] who made arrangements for her to board a vessel at Cochin. She arrived in Australia on 12 May 2012.
[35]The applicant then provides some details relating to her relationship with a person by the name of Lavan while she was living in Brisbane. Lavan’s brother-in-law is Para, who not only arranged for her travel to Australia but also travelled on the same vessel. It should also be noted that the applicant knew Lavan from Sri Lanka, he having been a delivery driver for their shop. It appears that Lavan and her husband were friends or drinking companions. She also attended his wedding in 2007 or 2008. Shortly before the wedding, Lavan stopped his delivery service and took up a new job driving for an NGO in the Trincomalee district. She says that the acrimonious nature of her breakup with Lavan led to disclosures to the Department.
[36]The applicant claims that the first time she became aware that her husband was still alive was when she heard from her sons in Sri Lanka that they had met him in Trincomalee whilst shopping in 2014. She says she had had no contact with him at all after 2008. She claims that she was a genuine asylum seeker when she came to Australia and that she had no understanding that her husband was not, in fact, missing. She claims that she had never heard from her family that he had been seen anywhere before the chance meeting with their sons. She says that her mother informed her that she was managing the marital house and that, on all of her visits, she had never seen the husband there. She says that since the date when she locked the marital house and left, and throughout her time in Malaysia, Sri Lanka, India and Australia, her two elder sons have always lived with her parents and have never lived anywhere else and, specifically, never with their father.
[37]A statement was submitted from Mr John Campbell Walker dated 17 August 2017. In addition to some details concerning his knowledge of the relationship between the applicant and Lavan, he states:
On or about 9 August 2014 [the applicant] called on my wife and I had our residents and informed us that she had received a phone call from another son of hers who are still living in Sri Lanka in which he informed [the applicant]’s that his father, her husband, had returned “home”. He reported to her and she to us that his father had said to him, “I need money. I hear your mother is in Australia. Will she help me.
”I asked [the applicant] if she was going to bring him to Australia. She replied in the negative, saying, “he is a bad person”. [The applicant] asked me if she should inform immigration and I told her I could see no point in doing so as her husband was still a fugitive.
Not long after this she informed us that she had learned of his death.
[38]It is the applicant’s case that the specific answers she provided in her statutory declaration of 20 June 2012 were true. She maintains that her husband was indeed missing and, to the best of her knowledge at the time, had been abducted. She claims that, at all material times, until about August 2014 there was no reason for her to believe anything other than what she has described in her statutory declaration of 2012. She maintains that, notwithstanding his reappearance and subsequent death, she has well-founded reasons to fear returning to Sri Lanka. Those reasons are substantially those claimed in her statutory declaration of 20 June 2012, including that of being a female Tamil without male protection.
[39]At the hearing, the applicant gave evidence that she and her husband were married in 1995 and have three sons, born in 1996, 1999 and 2002. When she left Sri Lanka to come to Australia, she left the two older boys, then aged 15 and 12, with her parents. She said she has been in touch with them constantly since leaving Sri Lanka. As noted in paragraph 36, it was not until 2014 that her sons had any contact with their father. With the post-hearing submission, the applicant supplied a statement from her son [name omitted], now living in France. That statement says:
My mother, [name omitted] has been living in Australia since 2012. She managed to get a regularisation in this country with a residence permit. However, because of jealousy and out of revenge, my father and his close friend who lives in Australia are trying to have her administrative papers cancelled. For this, they sent to your immigration service some fake documents about my mother. I learned this from my mother. I know very well that these documents are all falsified.
Some time ago, they also sent me by Messenger to me and my girlfriend fake photos that showed my mom naked, hoping it would make me discussed from my mother. But that did not work because I did not give in my mother and I always supported my mother. In 2008, my father suddenly disappeared. After that I grew up under the responsibility and protection of my grandmother. My mother had gone to a foreign country. As I was very small, I did not really understand what was going on around me.
From early 2008 until 2014, I never met my father. This is the absolute truth. I met him however by chance in 2014 in Trincomalee. I was very surprised by this meeting. I immediately informed my mother of the meeting that day. I also told her about the content of my conversation with my father. Even after that, my father never came to live with me! In addition, he is not at all interested in this idea. My father has never been a good father to me. I hate him!
[40]There is nothing in this statement that corroborates a belief or suspicion that the husband had been abducted or had absented himself from the family against his own will. The statement and the sentiments expressed in it are consistent with the bitterness associated with an ordinary case of paternal abandonment.
[41]The applicant’s statutory declaration in 2012 gives her last address in Sri Lanka as [place omitted], the marital home. This would be consistent with her original claims to have been desperately seeking her husband, believing him to have been abducted. It is not possible to square that representation with her subsequent claims to have locked up and left the marital home in 2008, her mother having leased the property to unrelated tenants in 2010 and her sister-in-law to have evicted those tenants and moved in herself and her family. All of the documents provided by her as to the domestic arrangements in Sri Lanka with her parents at [place omitted]. Her later statements have her living at her parent’s address in 2011 and 2012.
[42]A further problem arises from her account of being interrogated by the authorities on her return from Malaysia in 2011. In her 2012 statutory declaration (see paragraph 13 above), she claims that on her return to Sri Lanka she was questioned on four occasions, including about her husband’s disappearance. However, her husband was not missing in December 2011, as attested by the medical records disclosed to the Department. Her later statements contain an account in which she is repeatedly questioned, but in relation to supposed fund raising for the LTTE and there is no mention of questioning about the missing husband.
[43]However, the most important difficulty with her later version of events lies in the implausibility of any news reaching her by any means that her husband was not in fact missing, and certainly not by late 2011 when she had returned to Sri Lanka. She claimed that the marital home, abandoned and locked up by her in 2008, had been let out by her parents but that her sister-in-law had evicted those tenants. It was not at all clear how her parents had any legal claim on the property because the home had been built on her sister-in-law’s land. When questioned, the applicant claimed that her sister-in-law had objected when the applicant’s parents organised tenants for the property and the matter was then dropped. This softened account seems calculated to minimise the opportunity for any communications that may have confirmed the presence of the husband. She claims not to have visited the marital home at all between 2008 and 2012. She has provided no evidence concerning any assistance that her sister-in-law might have been able to give her to locate her husband and her evidence is silent as to any communications whatever with her husband’s family after leaving the marital home. This is consistent with a marital breakdown and quite inconsistent with an abduction which would have had effect on the wider family. No evidence which might corroborate her version of events (for example, from her former in-laws or her Sri Lankan friends, some of whom are, or have been, resident in Australia) has been provided.
[44]A very significant proportion of the applicant’s written evidence before the Tribunal concerns her relationship with Lavan and the events surrounding the breakdown of the relationship. The clear purpose of this evidence is to invite the Tribunal to find that the disclosure of information concerning her husband was motivated by spite or revenge. However, the only material to which I need to have regard is the unrefuted documentary material that her husband had not disappeared. He was almost certainly, on the evidence, living in the marital home when the applicant returned from Malaysia and well before the applicant departed for Australia.
[45]On the evidence before the Tribunal and having careful regard to the applicant’s explanation as to the circumstances in which her 2012 statement was made, I am satisfied that her husband was never abducted and that, to the extent that the applicant and the husband may have been incommunicado, she did not believe him to be missing by December 2011 at the latest. I am further satisfied that neither she nor husband was of interest to the Karuna Group or the Sri Lankan authorities and that she has no reason to fear persecution for any imputed political opinion.
[46]For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.”
The weight given to particular parts of evidence before the Tribunal was entirely a matter for the Tribunal. [7] At [24] of its reasons, the Tribunal recorded that after considering relevant discretionary factors, the delegate to the Minister had found that there were reasons justifying the cancellation of the applicant’s visa which outweighed any reasons to the contrary. The Tribunal was entitled to find that the decision to grant the visa was based upon incorrect information provided by her. At [52] – [54] of its reasons, the Tribunal found as follows:
[7] Minister for Immigration and Citizenship v Khadji (2010) 190 FCR 248 [68]
“Whether the decision to grant a visa or immigration clear the visa holder was based, wholly bogus document
[52]The decision to grant the applicant a protection visa on 12 March 2013 contained the following assessment:
Based on the consistency and coherency of the applicant’s claim, I accept that the applicant and her husband could have been of interest to the Sri Lankan authorities for reason of their association with members of the LTTE at the grocery store and in attending a Tamil celebration organised by members of the LTTE, noting that this all occurred prior to the cessation of the conflict in Sri Lanka and occurred in LTTE strongholds.
I further accept that the applicant husband has been missing since October 2008, likely for being perceived as an LTTE sympathiser. I also accept that the applicant did not know the full extent of her husband’s involvement with members of the LTTE, and take into account that she has not tried to exaggerate or embellish her claims. I accept also the applicant feared persecution for the association she had with members of the LTTE, and taking into account her husband’s disappearance.
In light of the applicant’s assertions, I accept that the applicant would have been of interest to the authorities following her return to Sri Lanka, taking into account the fact she had previously reported her husband missing and had spent a substantial period of time abroad. I further accept that the applicant suffered from sexual harassment, and likely sexual violence, during her interrogations.
In this case, I have accepted that the applicant has recently suffered from sexual harassment by the Sri Lankan authorities, who are known to commit serious human rights abuses and act with impunity. I also accept that the applicant’s husband is missing and that, as indicated by evidence, women whose husbands are missing are particularly vulnerable to being harassed, threatened and sexually assaulted in the context of the north and east of Sri Lanka. I therefore cannot discount the possibility that the applicant may be subjected to sexual harassment and/or other forms of serious harm if she is returned to Sri Lanka.
[53]The original delegate’s findings were very largely predicated on acceptance of the applicant’s claim that her husband was missing, which supported her claims to have an adverse profile in Sri Lanka. For the reasons given above, I am satisfied that the events forming the basis for her protection claims never occurred. I am satisfied that the decision to grant the visa was based, wholly or partly, on incorrect information provided by her. I give this significant weight against the application.
The circumstances in which the non-compliance occurred
[54]The applicant has submitted that she did not become aware of her husband being alive until informed by one of her sons in 2014, sometime after the grant of the protection visa. For the conclusion in paragraph 45 above, I do not accept the truth of her submission and can give this factor no weight in her favour.”
Implicit in the findings of the Tribunal was the rejection of the truthfulness of the applicant generally. The Tribunal was entitled to find that if returned to Sri Lanka, the applicant would be in the company of her son [redacted] (whose visa would automatically be cancelled in the event of the cancellation of the applicant’s visa), and that they would form part of a family network based in Sri Lanka. The Tribunal considered its non-refoulement obligations and the relevant Convention on the Rights of the Child. It cannot be said that the Tribunal failed to have regard to all relevant considerations when arriving at its decision. Having recorded its reasons for affirming the decision of the delegate in the way that it did, the Court finds that the Tribunal had regard to all relevant circumstances, including the Tribunal’s consideration of the matters set out in its decision as referred to above.
The Court finds that even absent the conceded procedural unfairness on the part of the Tribunal, the Tribunal could not realistically have arrived at a different decision. Grounds 1 and 2 of the Application for Review are without merit.
As to Ground 3, the applicant claimed that the Tribunal had failed to reach a positive state of satisfaction in that the Tribunal’s findings at [43] of its reasons “ … did not rise above speculation or suspicion.” [8] As to that claim, it is clear from a reading of [43] of the reasons of the Tribunal that the Tribunal had considered the inconsistencies in the applicant’s claims as well as the implausibility of her various explanations as to her not having known that her husband was alive at the time that she made her statutory declaration in 2012. The Tribunal referred to the fact that inquiries made by the Department had revealed that the applicant’s husband was alive and living in Sri Lanka at the same address at which the applicant claimed to have been living prior to her leaving Sri Lanka. The Tribunal recorded that such inquiries had also indicated that the applicant’s two other children were also living at the same address, and that documentation held by the Department included a certificate of residence and character which had been issued in 2014, a householder’s list issued in 2014 and other documents confirming that the applicant’s husband was alive. [9] Such information was inconsistent with information provided by the applicant in her protection visa application where in a statutory declaration made on 20 June 2012 in support of her application, the applicant stated that her husband had been missing since 2008 and that he had been held at the offices of a militant Tamil organisation called the Karuna Group, thereby giving rise to the risk of her being persecuted by reason of her Tamil ethnicity as well as because of her husband’s alleged involvement with the LTTE. The response to the NOICC documents given to the applicant was that the information she provided at the time of the making of her visa application was nevertheless correct. The Tribunal was reasonably entitled to find it implausible that the applicant would not have known by a number of means that her husband was not missing at the time that the applicant had returned to Sri Lanka and visited relatives in December 2011. The Tribunal was also entitled to find it implausible that the applicant would not have returned to the marital home between 2008 and 2012 which would have revealed the presence of her husband at such home to her.
[8] Applicant’s submissions filed on 24 February 2023 at [42]
[9] See [21] – [22] of reasons of the Tribunal.
The Tribunal clearly did not accept the applicant as a witness of credit. It did so after having weighed up and balanced all of the evidence before it. No question as to whether or not the Tribunal considered the question of whether there had been a marital breakdown between the applicant and her husband ever arose because such was not raised as a ground of review. In any event, the Tribunal did consider the issue of marital breakdown when, at [45] of its reasons, the Tribunal adverted to the applicant and her husband being incommunicado. There is no merit to Ground 3.
Ground 4 was a claim that the applicant gave an inconsistent narrative of her place of residence in Sri Lanka at [41] of the reasons of the Tribunal in circumstances where the Tribunal relied on such inconsistency to make an adverse credibility finding against the applicant, namely that the applicant had wrongly asserted that she had been searching for her missing husband in or around 2008. The claim is without merit.
Even accepting that the Tribunal had erroneously found that the applicant’s statutory declaration had incorrectly recorded an address, such finding was of little significance having regard to the number of inconsistencies and improbabilities which the Tribunal had otherwise correctly identified, and which together adversely impacted upon the applicant’s credibility. The erroneous finding did not go to a central issue for determination by the Tribunal, even on the question of credibility, because it was not of itself a critical finding. As was held in Minister for Immigration and Board of Protection v SZUXN [2016] FCA 516 at [56] per Wigney J:
[56]An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455–456 [14]–[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
Further, the assertion that the decision of the Tribunal lacked a logical and probative basis has not been made out. No extreme illogicality or irrationality has been established. In SZUXN at [52] – [55], Wigney J found that jurisdictional error will generally not be established if the reasoning or fact finding of the Tribunal was immaterial to, or not critical to, the ultimate conclusion. His Honour said as follows:
“[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.
[53] The Minister submitted that a decision of the Tribunal can only be overturned on the basis of illogicality or irrationality if it is shown that the end result is one which no logical or rational decision-maker could arrive at. The submission appeared to be that, where a decision is challenged on the basis of illogicality or irrationality, the reviewing court should decide for itself whether the end result was irrational on the materials that were before the decision-maker, as opposed to whether the decision-maker’s reasoning was illogical or irrational. This was said to flow from the judgment of Crennan and Bell JJ in SZMDS.
[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].”
The Court agrees with the submission made on behalf of the first respondent that the identified error in the recording of the applicant’s claimed address was immaterial, and could not realistically have resulted in the Tribunal arriving at a different decision even if it had been correctly recorded. There is no merit to Ground 4.
As to Ground 5, the applicant withdrew an application for production of documents contained in sealed envelopes which had been delivered to Judge’s Chambers. Otherwise, it was claimed that the Tribunal ought to have disclosed to the applicant the information identified at [21] of the reasons of the Tribunal, namely, a certificate of residence and character issued in 2014, a householder’s list issued in 2014, certified copies of identity documents validated in 2012, and medical records of the husband dating from 2011. It was submitted that the Tribunal was in error when at [27] of its reasons it found that the material information had already been disclosed to her. In rejecting such submission, it was submitted on behalf of the first respondent that such document had in fact been covered by a s. 375A certificate, and that such documents had been disclosed by the first respondent in this proceeding. [10] Having viewed such documents, the Court accepts the submissions made on behalf of the first respondent, that such documents had relevantly been disclosed.
[10] See affidavit of Samuel Cummings filed on 4 November 2021 and annexure SMC-2 thereto
The ground of review was essentially a complaint that the identity of an informant and documents provided to the Department by such informant ought to have been provided to the applicant, notwithstanding that the non-disclosure of the identity of an informant has long been held to constitute a valid claim based upon public interest immunity principles. The Tribunal addressed the applicant’s complaints by a letter dated 10 October 2019 in which it was said as follows: [11]
“We confirm receipt of your response regarding the validity of the s.438 Non-Disclosure certificates provided to you on 16 September 2019. We note that the material covered by the certificate will not form part of the Member’s consideration of the application as the material compromises allegations made by an anonymous informant and the Member considers that it has no probative value.
Disclosure of the material will not be made due to the risk that the identity of the informant may be ascertained on its face. Accordingly, it does not contain adverse information for the purposes of the application. To the extent that any adverse material might be intended to be put, this material might be intended to be put, this material is extensively canvassed in the delegate’s decision.”
[11] CB 289
The Tribunal’s failure to positively exercise its discretion under the provisions of s. 438(3)(b) did not lack an evident and intelligible justification. [12] It was open, and not unreasonable, for the Tribunal not to have so exercised its discretion, and to have found that documents covered by the certificates were immaterial. The Tribunal dealt with the disclosure of documents the subject of ss. 438 and 375A of the Act at [27] – [29] inclusive of its reasons as follows:
Non-disclosure certificates
[27]The other material available to the Tribunal comprises the departmental file. The bulk of the material on the file has been disclosed to the applicant. Folios 1 to 11, 68, 73, and 97 were not disclosed and are the subject of a nondisclosure certificate under section 438. This material consists of internal departmental reports, apparently of a routine nature, all recording the receipt of the information referred to in paragraph 20 above. The certificate specifies that the subject information should not be disclosed to the applicant because it contains information provided to the Department by an informant. I sought and obtained the submissions of the applicant’s representative in relation to the material covered by the certificate. The applicant’s representative sought disclosure of that material. Having considered the material, I have come to the view that there is nothing in the subject folios which I consider germane to the issues to be determined on this application. The material information relating to the applicant’s husband has already been disclosed to her. The other material tends only to identify the source of the material and the names of the departmental officers who assessed it. The applicant has surmised the identity of the informant and made submissions on the basis of that surmise. While she considers the identity and motivations of the informant to be relevant to her application, for the reasons given below, I do not consider that anything turns on it. Having regard to the public interest identified in the certificate and the immateriality for the purposes of this application of the information covered by it, I do not consider that any prejudice or disadvantage would be occasioned to the applicant bites nondisclosure.
[28]On 20 January 2020, the Tribunal received a further series of documents from the Department under the cover of a section 375A certificate. The documents purport to describe the husband’s circumstances. On 16 June 2020, the certificate was forwarded to the applicant’s representative with an invitation to comment or make submissions. On 9 July 2020, the representative responded with submissions to the effect that the applicant’s evidence should be preferred to any unsworn material provided by an informant. Access to the documents was not requested.
[29]Having reviewed the documents covered by the certificate, I consider that the certificate is invalid, having purportedly been issued under section 375A rather than section 438, this matter being concerned with a Part 7 reviewable decision. However, I am not satisfied as to the provenance or credibility of the documents purportedly covered by the certificate. I therefore consider them irrelevant and have had no regard to them.”
[12] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]
The Court does not accept the applicant’s submission that the information was of central relevance to the making of the Tribunal’s decision. Ground 5 is without merit.
For the above reasons, the Court rejects Ground 6 of the Amended Application for Review and the assertion that errors were material.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The grounds of review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 29 May 2023
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