EAT17 v Minister for Immigration & Anor
[2018] FCCA 3036
•30 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EAT17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3036 |
| Catchwords: MIGRATION – Protection visa application – judicial review of Immigration Assessment Authority decision – whether the Authority erred in making findings that were not open to it – whether the Authority erred in its assessment of country information – whether country information relied on must be reliable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 46A, 65, 473CB, 476(1) Pt. 7AA |
| Cases cited: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545 |
| Applicant: | EAT17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 490 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 17 August 2018 |
| Date of Last Submission: | 17 August 2018 |
| Delivered at: | Perth |
| Delivered on: | 30 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Draper |
| Solicitors for the Applicant: | Granich Partners |
| Counsel for the First Respondent: | Ms E. Tattersall |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| The Second Respondent | Submitting appearance, save as to costs |
ORDERS
The applicant’s originating application filed 8 September 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 490 of 2017
| EAT17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings is a national of Sri Lanka. He was born in the Mullaitivu District and is an ethnic Tamil.
The applicant arrived on Cocos Island as an unauthorised maritime arrival on 26 August 2012 (Court Book (“CB”) 127 and 240 at [4] and [7]).
In August 2013, the applicant made an invalid application for a Protection visa (CB 24-54).
On 11 September 2015, the Department of Immigration and Border Protection advised the applicant that the Minister had lifted the bar pursuant to s.46A of the Migration Act 1958 (Cth) (the “Act”) and invited the applicant to apply for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHEV”) or a Temporary Protection (Subclass 785) visa (CB 92-99).
On 23 May 2016, the applicant applied for a SHEV (CB 107-147). The applicant’s key claims were set out in a statutory declaration dated 23 May 2016 that was submitted with his visa application (CB 167-172). In summary, the applicant claimed that:
a)He was born in the Northern Province in Sri Lanka and his family were displaced during the civil war.
b)On 18 January 2009, his uncle was arrested and detained by the Criminal Investigation Department (the “CID”) under suspicion of being a member of the Liberation Tigers of Tamil Eelam (“LTTE”) and he has not been seen since.
c)In May 2009, the applicant was released from an Internally Displaced Persons (“IDP”) camp in Trincomalee. A few days later, four men from the CID searched his aunt’s house (where he was staying). The applicant was questioned and taken to the police station where he was beaten over two days.
d)Once released, the applicant was visited every few days by the CID. Approximately one week after he was released, the CID demanded money from the applicant’s aunt. His aunt was not in a position to give them money and they continued to harass her with visits and telephone calls.
e)In June 2009, the applicant was arrested by the CID under suspicion of being an LTTE member. He was detained for approximately 25 days and beaten during that time.
f)The applicant then applied for, and was granted, a visa to India. He lived in India for one year.
g)Upon returning to Sri Lanka the applicant lived with his aunt. Approximately one month after his return, the CID questioned him about his trip to India.
h)The CID would regularly harass and stop the applicant on his way to school and told his aunt that if she didn’t pay them, the applicant would face the same fate as his uncle.
i)Once he completed his O levels, the applicant tried to get a job to meet the CID’s demands but could not earn enough to pay them. The threats continued and the applicant decided to leave Sri Lanka.
On 22 September 2016, the applicant attended an interview with a Ministerial delegate (the “delegate”) (CB 198).
On 8 December 2016, the delegate refused to grant the applicant the SHEV (CB 214-232).
On 14 December 2016, the delegate’s decision was referred to the Immigration Assessment Authority (the “Authority”) for a “fast track” review under Part 7AA of the Act (CB 233).
On 9 August 2017, the Authority affirmed the delegate's decision (CB 239-254).
By application filed in this Court on 8 September 2017, the applicant seeks judicial review of the Authority’s decision. This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Authority.
The Authority’s Decision
The Authority’s decision appears at pages 239 to 254 in the Court Book. A summary of the Authority’s decision was provided by counsel for the applicant (Mr Draper) in written submissions dated 4 July 2018 at paragraphs 2 to 7 and by counsel for the Minister (Ms Tattersall) in written submissions dated 27 July 2018 at paragraphs 7 to 14. The Court notes, relevantly, as follows.
The Authority had regard to the information referred to it by the Secretary in accordance with s.473CB of the Act and noted that no further information was obtained or received (CB 240 at [3]).
The Authority accepted the applicant’s factual claims and found that he was a credible witness (CB 242 at [9]).
The Authority found that the applicant had been subjected to serious harm in the past by the Sri Lankan authorities for reasons of his Tamil ethnicity and his imputed association with the LTTE (CB 242 at [11]-[13]).
The Authority also found that the applicant’s uncle had been arrested and detained by the CID on suspicion of LTTE involvement, has never been seen again and is now presumed dead (CB 242 at [10]).
The Authority accepted that the applicant was detained, interrogated and tortured in an IDP camp in May 2009 for two days (CB 242 at [11]), again by the authorities in June 2009 for a period of 25 days (CB 242 at [12]) and questioned by the authorities in 2011 on account of suspected LTTE involvement. It was also accepted that this final event lead the applicant to leave Sri Lanka in 2011.
In this regard, the Court notes the Authority’s decision at [14] and [28] as follows:
14.… I find that the applicant has been subjected to serious harm in the past in Sri Lanka by the Sri Lankan authorities for reasons of his Tamil ethnicity and his imputed association with or support for the LTTE arising from his uncle's suspected involvement with the LTTE and the applicant coming from an area under LTTE control during part of the war. I find that the applicant's uncle was also subjected to serious harm because of his Tamil ethnicity and his suspected involvement with the LTTE.
…
28.The applicant emphasised in his SHEV interview that he fears returning to Sri Lanka because he continues to fear the CID. He stated that when he returned to his aunt's home from India he was harmed by the CID and fears that if he returns from Australia they will continue to give him trouble. He stated that this will occur because he is Tamil, came from an LTTE controlled area and this was always referred to during his questioning and mistreatment by the CID. I have accepted the applicant's claim that his uncle was arrested by the CID in early 2009 on suspicion of involvement with the LTTE and his whereabouts remain unknown. I note that the detention of the applicant's uncle was reported in a news article provided by the applicant at the SHEV interview. I am satisfied that the applicant has family links with a person who was suspected of involvement with the LTTE. I find that this places the applicant within a cohort of people who, according to the report from UNHCR in December 2012, may warrant international protection.
The Authority then assessed the current climate in Sri Lanka, noting generally positive changes since the end of civil war in that country. Relevantly, in assessing country information, the Authority found that:
a)the August 2012 national elections resulted in the Tamil National Alliance formally leading the opposition political (CB 243 at [17]);
b)a reconciliatory body was established to reconcile the Singhalese and Tamil communities (CB 243 at [17]);
c)the security situation in the North and East has greatly improved, with a reduction in the state military presence in those areas (CB 243 at [18]);
d)Tamils are represented throughout the state military and policing structures (CB 243 at [19]);
e)originating from a previously LTTE controlled area does not result in a need for refugee protection (CB 243 at [20]);
f)being a Tamil does not give rise to persecution or a risk of serious harm (CB 243 at [20]); and
g)in general, a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have a significant role in relation to post-conflict Tamil separatism or appear on a stop list at the airport, would not warrant international protection (CB 243 at [20]).
Overall, the Authority was satisfied that the applicant did not face a real chance of serious harm now and in the foreseeable future because he was born and lived until 2009 in an area that was under control of the LTTE (CB 244 at [21]). The Authority further found that the applicant did not face a real chance of serious harm because of his Tamil ethnicity alone (CB 244 at [21]).
The Authority then considered whether these factors, combined with the applicant's past experience of persecution, gave rise to a real chance of serious harm now and in the foreseeable future. In this regard, the Authority had regard to country information which identified that human rights abuses continued against Tamils with known or suspected links to the LTTE (CB 244-245 at [22]-[27]).
Relevantly, the Authority found:
a)the Sri Lankan authorities remain sensitive about the re-emergence of the LTTE (CB 244 at [22]);
b)a number of returning Tamils are arrested and most arrestees are former LTTE members (CB 244 at [22]);
c)real protection for Tamils has been “very slow” in coming (CB 244 at [23]);
d)there is systematic, ongoing torture and ill-treatment of detainees that is widespread throughout Sri Lanka, including against those arrested in the context of security operations, as confirmed by multiple sources quoted by the Authority (CB 244 at [24]);
e)There is no question that human rights abuses continued to be perpetuated against Tamils with known or suspected links to the LTTE (CB 245 at [25]); and
f)Persons suspected of LTTE links are regarded as being at risk of harm in Sri Lanka (CB 245 at [26]).
In relation to these latter two findings, the Authority explained:
25.There is no question that human rights abuses continued to be perpetrated against Tamils with known or suspected links to the LTTE. The UK Home Office refers to numerous reports which indicate that 'If a person is detained by the Sri Lankan security services there remains a real risk of ill treatment or harm requiring international protection.' The UNHCR and the UK Home Office have identified groups of people at risk of being harmed in Sri Lanka. The UK Home Office identifies: (i) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora and/ or a renewal of hostilities within Sri Lanka; (ii) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government; (iii) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses; and (iv) A person whose name appears on a computerised "stop" list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a "stop" list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
26.The UNHCR identifies the following cohorts of people regarded as being at risk of harm in Sri Lanka. (i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) certain opposition politicians and political activists; (iii) certain journalists and other media professionals; (iv) certain human rights activists; (v) certain witnesses of human rights violations and victims of human rights violations seeking justice; (vi) women in certain circumstances; (vii) children in certain circumstances; and (viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individual s in certain circumstances.
27.In relation to persons suspected of links with the LTTE the UNHCR states that these may include: 1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; 2) Former LTTE combatants or "cadres"; 3) Former LTTE combatants or " cadres" who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, "computer branch" or media (newspaper and radio); 4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; 5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; 6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
(Citations removed)
The Authority then found that the applicant fell within a cohort of people which, according to the report from the UNHCR (dated December 2012), may warrant international protection (CB 246 at [28]).
Noting that the applicant had never been charged with any offence and was not detained for longer than 25 days, the Authority concluded that the applicant was not “seriously suspected of LTTE involvement or advocating for a separate Tamil state” (CB 246 at [29]).
The Authority also noted that the applicant was able to exit and re-enter Sri Lanka on his own passport without difficulty and that his family continued to live in Jaffna unharmed (CB 246 at [30]-[31]).
Overall, the Authority was not satisfied that the applicant had an adverse profile with the Sri Lankan authorities and found that the continued harassment and extortion demands that the applicant experienced were primarily localised criminal actions by the CID in the area in Trincomalee where the applicant lived with his aunt (CB 246 at [31]).
Based on country information (summarised by the Authority at [33] and [34]), the Authority was satisfied that, on return, the applicant would be held on remand for a number of hours whilst identity, character and security checks were completed and that authorities may assume that he sought protection in Australia (CB 247 at [35]-[36]). Relevantly, the Authority determined:
36.Given the circumstances of the applicant's illegal departure from Sri Lanka and the duration of his residence in Australia I accept that the Sri Lankan authorities may assume that the applicant sought protection in Australia. However the country information does not support a finding that failed Tamil asylum seekers are imputed with a pro-LTTE opinion, or are suspected to have been involved in supporting the LTTE merely because they are Tamils and have sought asylum. DFAT has reported that "There have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment...Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act."
37.I am satisfied that the applicant does not have the profile of an LTTE member, an anti-government activist or a Tamil separatist. While I accept that his uncle was detained in 2009 and has since disappeared and I accept that the applicant was detained in 2009 on two occasions, the longest for twenty-five days, I am satisfied that his release without being charged at a time when it was possible to detain for a very lengthy period of time under the Emergency Regulations and/or the PTA, indicates that he is not perceived by the Sri Lankan authorities as a person who has links with the LTTE or who is anti-government or an advocate for Tamil separatism. As stated previously, after assessing all the evidence I am satisfied that since his release from detention in 2009 the CID interest in the applicant relates primarily to attempts at extortion and is localised to the CID in the area where he lived with his aunt.
38.The applicant does not claim to be facing outstanding criminal charges or to have been involved in any aspect of people smuggling. As such, I am satisfied that the applicant will not be detained for a lengthy period of time or subjected to serious harm or significant harm on arriving back in Sri Lanka as a person who departed illegally and is returning as a failed Sri Lankan / Tamil asylum seeker. I am satisfied that the applicant will undergo routine processing as outlined in the preceding paragraphs.
39.According to DFAT returnees are treated according to the standard procedures outlined above, regardless of their ethnicity and religion. I am satisfied that the applicant will be charged and convicted for his illegal departure and fined an amount between 5,000 and 50,000 Sri Lankan rupees. I find this treatment does not amount to serious harm.
40.I also find the procedures under which the applicant as a returnee would be dealt with, and any penalties to which he may be subjected, will be applied in a non-discriminatory basis under a law of general application, and as such do not constitute persecution for the purpose of the Act.
(Citations removed)
Accordingly, the Authority found that the applicant did not meet the requirements set out in s.5H(1) of the Act and, as such, did not meet the requirements of s.36(2)(a) of the Act.
In relation to the relevant complementary protection criteria, the Authority relied on its earlier findings to support the conclusion that the applicant would not face a real risk of significant harm for any of the reasons advanced (CB 249 at [45] and [46]). The Authority further found that the questioning, imposition of a fine and the brief period of detention on remand because of his illegal departure did not amount to significant harm or give rise to a real risk of significant harm (CB 249 at [47]).
Proceedings in this Court
The applicant seeks orders in this Court for the issue of constitutional writs. In order for these writs to be the issued the applicant needs to demonstrate that the Authority fell into jurisdictional error.
In his judicial review application, the applicant relies on two grounds of review:
1.The Tribunal made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution.
Particulars
(a)The Tribunal misdirected itself in concluding and unreasonably concluded that the Applicant will not be subjected to persecution for reasons of being a member of the particular social group being either a Tamil resident in former LTTE controlled areas of Sri Lanka (notably the North) or a Tamil associated directly or indirectly with the LTTE when that conclusion was not reasonably open in the light of all of the country information before the Tribunal, notably, inter alia, the UNHCR Eligibility Guidelines, the UK Home Office/Country Information, the 18 December 2016 DFAT Country Information Report, quoted news reports and Amnesty International Annual Report 2015/16, whose conclusions fail to reasonably address or lead to the conclusion that the Applicant would not face a real chance of serious harm now or in the reasonably foreseeable future and that the Applicant's ethnicity and association directly or indirectly the LTTE and consequent risk of harm does not reasonably lead to a conclusion that the Applicant does not have a well-founded fear that there is a real chance of serious harm for reasons of his LTTE involvement if he returns to Sri Lanka;
(b)The Tribunal, having had regard to the country information before it found that while the Applicant may continue to experience a level of discrimination if he returns to Sri Lanka, erroneously took into account a finding that the applicant will not be targeted for serious harm if he returns to Sri Lanka and unreasonably concluded that the Applicant does not face a real chance of serious harm or persecution for reasons of his ethnicity or indirect association with the LTTE.
2.The Tribunal failed to give any reason for the decision it reached to prefer specific evidence from the quoted sources over other contradictory evidence contained in the same or other sources relied on by the Tribunal and the evidence contained therein.
It is noted that only ground one was specifically addressed in the applicant’s written submissions. However, it is arguable that, to some extent, ground 2 was addressed in oral submissions – at least to the extent that the applicant asserts that the Tribunal acted “unreasonably” by not explaining why it preferred some information over other available sources of country information. The Court has proceeded on the basis that both ground one and two were “merged” by counsel for the applicant under submissions provided in relation to whether the Authority’s reasons and findings were “unreasonable”.
Reasonableness
At its core, the applicant’s submissions contend that, in light of the evidence before the Authority and in light of the vast majority of the Authority’s findings in relation to that evidence, there is simply no way the Authority could have concluded that the applicant would not face the requisite level of harm if returned to Sri Lanka.
The applicant states in written submissions:
5.At [CB 244, 21] the IAA concludes the Applicant does not face a real chance of serious harm due (1) to his living in a formally LTTE controlled area or (2) because of his Tamil ethnicity or (3) that the Applicant has the profile of, inter alia, an LTTE member [CB 247, 37] (collectively the Conclusions).
6.The Conclusions are unreasonable in that the finding that the Applicant does not face a real chance of harm is not open to the IAA on the material before it.
…
8.We submit that a reasonable mind cannot but conclude that a Tamil who was previously detained, interrogated and tortured on suspicion of being an LTTE member, who's family members were former LTTE members, who is returning to Sri Lanka where the authorities are sensitive to the re-emergence of the LTTE, who have arrested returning LTTE members, where real protection for Tamils is very slow in coming, where there is systematic, ongoing torture and ill-treatment of detainees that is widespread throughout Sri Lanka, including those arrested in the context of security operations and where human rights abuses continue against LTTE Tamil suspects, faces a real chance of harm on his return.
9.And the reliance by the IAA on the fact that the Applicant was only detained for 25 days, was able to obtain a passport and safely exit Sri Lanka to travel to India during 2011 and that his parents live in Sri Lanka and, presumably, are not subject to persecution, cannot enable the IAA to conclude, as it has done, that the Applicant does not face a real risk of harm. It is unreasonable and it is accordingly illogical, to rely on information and facts from past events in these circumstances and assume they are relevant to the current circumstances.
10.The fact that the Passport Issuing authorities issued the Applicant with a passport, for example, does not enable a person to conclude, as the IAA has done, that no government authorities have suspicions concerning the Applicant. The only conclusion that can be logically reached is that the Passport Issuing authorities did not suspect the Applicant of any LTTE connection, not-that all authorities do not suspect the Applicant. Similarly, the fact that previously suspected Tamil LTTE members who are from the Applicant's family reside in Sri Lanka and are not persecuted cannot logically enable the IAA to conclude the Applicant will not be persecuted. A reasonable mind cannot reach these conclusions.
(Citations removed)
In Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”), the plurality of the High Court stated (at [76]) that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.
The jurisprudence in relation to reasonableness post-Li has received extensive judicial scrutiny. Oft cited cases in the Full Court include: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 (“Muggeridge”); Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (“Stretton”).
A thorough overview of the relevant legal principles in this context was provided by the Minister in his written submissions at paragraphs [17] to [24]. That summary shows, correctly, that the law relating to unreasonableness is as follows.
In Stretton, Allsop CJ explained:
11.… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power…
In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, the Full Court stated that the process of review of legal unreasonableness “will inevitably be fact dependent”. The Court continued:
48.…that is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as 'intelligible justification' must involve scrutiny of the factual circumstances in which the power comes to be exercised.
The relevant statutory provision in this case is s.65 of the Act. That section requires the Minister either to grant or not grant a visa if satisfied (or not satisfied) that the applicant meets the relevant statutory criteria. As McKerracher J pointed out in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 (“SZOOR”), referring to Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 (“Applicant S20”):
52.…it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can only be impugned where the factual determination is "illogical, irrational or lacking a basis in finding or inferences supported on logical grounds".
Further, in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:
131.The test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Their Honours further explained:
135.A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or of there is no logical connection between the evidence and the inferences or conclusions drawn.
In ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109 (“ARG15”), the Court (after referencing SZMDS) said:
[47]Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “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 against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”. Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error.
(Citations removed)
As correctly noted by the Minister, SZMDS sets a very high threshold for findings of irrationality or illogically (citing also Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [34]-[36] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 1 at [30]).
It is not enough, in this context, for the question of fact to be one on which reasonable minds may come to different conclusions: ARG15 at [47]. Further, 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 not critical to the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [55].
In relation to the applicant’s submissions that the Authority could not, in the factual circumstances of this case, have reasonably concluded that the applicant would not be subjected to harm if returned to Sri Lanka, the Minister responded:
31…it cannot be said that only one conclusion was open to the Authority, namely to accept the applicant’s claims (or, more specifically, the applicant’s view of the preferred conclusion to be drawn from the country information). Nor can it be seriously contended that the impugned findings were not open to the decision maker (albeit, the applicant may not agree with it). As Griffiths J said in Stretton at [74], “to describe reasoning as unreasonable or irrational may merely be an emphatic way of disagreeing with it”: referring to Applicant S20 at [5] per Gleeson CJ and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [34].
In oral submissions, counsel for the applicant pressed the arguments advanced at paragraphs 8-10 in his written submissions. In effect, counsel stated that no one could have come to the conclusion reached given the evidence before the Court in relation to the current political climate in Sri Lanka, the abuses inflicted on this young man of Tamil descent and others like him.
The Court agrees with the Minister in this regard. It cannot be said here that the conclusions drawn by the Authority were not open to it on the information before it. The Court rejects any suggestion that the Authority’s findings were unsupported by probative material or that the conclusions drawn cannot reasonably be drawn from the facts, evidence and country information relied on.
The Authority's reasons for decision demonstrate that the Authority gave careful consideration to all of the applicant’s claims and evidence. The Authority’s reasons for concluding that it was not satisfied that the applicant faced a real chance of being persecuted for the reasons advanced and for concluding that there was not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if returned to Sri Lanka cannot be said to lack "an evident and intelligible justification": Li at [76] per Hayne, Kiefel and Bell JJ.
Overall, while the applicant may disagree with the conclusions drawn and may preference other information and evidence, it cannot be said here that the Authority “could not possibly” have come to the conclusion it came to in relying on the information it did ultimately rely on. The decision is neither illogical nor irrational.
Use of Country Information
In addition to the applicant’s contentions in relation to illogicality generally (canvassed above and rejected), the applicant here also made specific reference to the way in which the Authority used the country information before it. Specifically, it was put that the Court must be satisfied that country information relied on by the Authority must be scrutinised and seen to be “reliable”. That task would require the Court to undertake an evaluation as to the accuracy of the country information considered by the Authority in light of all of the evidence available to it.
Before analysing this argument in detail, a few broad principles need to be highlighted.
It is accepted that this Court cannot review the merits of the Authority’s decisions: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In relation to the use of country information, in DVI17 v Minister for Immigration [2018] FCCA 241 (at [39]), Judge Wilson of this Court made the following observations on the use to which country information may be put in a proceeding in which jurisdictional error is raised:
a)the accuracy of country information is a matter for the Tribunal, not a court, because a court would be engaging in an impermissible merits review if it made its own assessment of country information, a proposition made good by the Full Court of the Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; and see also observations of Judge Wilson in AUV15 v Minister for Immigration and Border Protection [2017] FCCA 1951; and
b)the choice and interpretation of country information is a factual matter for the Tribunal alone, as was held by Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545 and in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419.
Although Judge Wilson is referring above to decisions of the Administrative Appeals Tribunal, these principles apply equally to the Authority.
In this matter, although conceding that NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 and the cases that follow it remain good law, the applicant contended that these core principles must now be read differently in light of more recent case law which, the applicant contends, suggest that the Authority can be found to have erred if it is determined that the country information relied on was not “reliable”.
In this regard, the applicant sought to rely on the High Court’s decision in CRI026 v The Republic of Nauru [2018] HCA 19 (“CRI026”).
CRI026 is a decision on appeal from the Supreme Court of Nauru. It concerned the issue of internal relocation in the context of the Refugees Convention Act 2012 (Republic of Nauru). The appellant in that case argued that the question of “reasonableness” did not apply in determining whether there was an obligation of complementary protection under that Act because, if it did, it would be incumbent upon an applicant for complementary protection to undertake the practically impossible task of establishing that there is no place in his or her country of nationality to which he or she could reasonably relocate. The Court rejected that contention, stating:
[39]That contention should also be rejected. Implicitly, it proceeds from the false premise that a claim for complementary protection is in the nature of an adversarial proceeding in which the burden of proof is on the applicant and, therefore, that, in the event of the applicant failing to discharge the burden of proof, the claim for complementary protection must fail. To the contrary, however, as appears from BL v Australia, before a decision maker may properly reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the decision maker needs reliable information as to the safety and suitability of the place of relocation. Moreover, as Gummow, Hayne and Crennan JJ observed in SZATV v Minister for Immigration and Citizenship in relation to a claim for refugee protection:
What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant’s personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis.
(Citations omitted)
In relation to the matter before this Court, counsel for the applicant contended:
12.…in CRI026… the High Court held that before the Authority can reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the Authority must consider, in making a decision to relocate the Applicant (at [39]):
1.reliable information as to the
a. safety, and
b. suitability of the place of relocation; and
2.pay careful regard to the Applicant's personal and family circumstances.
11.Reliable information' is not defined by the Court and we submit the ordinary meaning of 'reliable' must be given in defining the nature of the information to be relied upon.
12.Webster's Third New International Dictionary (1981) (the Dictionary) defines 'reliable' as:
Suitable or fit to be relied on ... of proven consistency in producing satisfactory results
And· the Oxford English dictionary defines reliable as:
Constantly good in quality and performance ...able to be trusted.
13.The Dictionary defines 'reliably' as "in a reliable manner: with certainty".
14.We submit that while CRI026 is good authority for the proposition that the IAA must only consider information regarding the safety and suitability of the place of relocation which is reliable, the application of this requirement of reliability of information is not limited to matters concerned solely with relocation matters.
15.We submit it would be anomalous to the principles of certainty and public policy if the IAA was required to only consider reliable country information in matters concerning the relocation of asylum seekers while being enabled to consider unreliable country information when the asylum seeker is being deported to the receiving country.
16.In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FACFC 10 (NAHI) the Court held at [11], that:
[39]... Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but will also need to pay careful regard to the applicant's personal and family circumstances. ...
"[T]he question of accuracy of the 'country information' is one for the Authority, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in a merits review."
…
18.We submit that CRI026, contrary to NAHI, extends the Court's jurisdiction to review for jurisdictional error in that the Court must undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority.
19.The Full Court explained in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh) that the process of review of legal reasonableness "will inevitably be fact dependent" (at [48]) and the role of the supervising Court only involves a scrutiny of the factual circumstances in which the power comes to be exercised".
20.We further submit that CRI026 read in the context of Singh requires the Court to scrutinise the factual circumstances upon which the Minister exercises his/her power to test those facts and circumstances (for example, deportation to another part of the returning country) for reliability. To put it simply: a decision to deport an Applicant can only be reasonably made if that decision is made with regard to reliable information - consideration of unreliable information is unreasonable.
21.The country information states, and the IAA found… that past LTTE connections do not warrant international protection.
22.The country information also states, and the IAA found, at paragraph 7(e), for example, that human rights abuses continue to be perpetuated against Tamils with known or suspected links to the LTTE.
23.We submit that the above contradictory and inconsistent information renders the information unreliable in the absence of any reasonable rejection of any of that contradictory information. And with regard to CRI026, we further submit the Minister is now tasked with considering not only all relevant country information, but also all reliable country information before it, the reliability of which is subject to the scrutiny of the Court.
The Minister, in turn, contended:
30 …CRI026… does not stand for the proposition that the Court is required to undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority. The passages to which the applicant refers [39] relates to consideration of the appellant’s argument in that case that the availability of reasonable internal relocation was irrelevant to the assessment of complementary protection. It was in that context that the Court accepted the need for reliable information as to the safety and suitability of the place of relocation before a decision maker could properly reject a claim for complementary protection on the basis of the availability of internal relocation. The Court in CRI026 did not engage in an assessment of what constituted “reliable information” or otherwise endorse the Court undertaking its own assessment of the information before the Authority. Accordingly, CRI026 does not displace the principles established in NAHI.
In relation to this issue, the Court notes the recent decision of Judge Smith of this Court in DQA17 v Minister for Immigration [2018] FCCA 2418 (DQA17). That case raised issues in relation to the prospect of relocation in Afghanistan. There, the applicant argued that the Authority had unreasonably concluded that it was practicable for him to relocate to Kabul and (highlighting the decision CRI026) argued that the Authority erred by relying on information that was not reliable.
Judge Smith summarised the applicant’s position and, rejecting it, found as follows:
53.The applicant … argued that, in light of CRI026, the Authority could only be satisfied that it was reasonable for the applicant to relocate on the basis of reliable information about the relevant circumstances in Kabul.
54.… He argued that … the Court must undertake an evaluation as to the accuracy and reliability of the country information considered by the Authority. His argument was that where, as here, there was information that was contradictory and inconsistent with the information relied on by the Authority, the latter information was, for that reason, unreliable and so the Authority’s reliance on it was unreasonable.
55.There are many difficulties with that submission. Leaving to one side the different statutory context in which CRI026 was decided, there are two particular issues. First, what was meant in CRI026 by the word “reliable”; and secondly, whether the information here was “reliable”.
56.The applicant contends that information is reliable if it is “suitable or fit to be relied on” and “of proven consistency in producing satisfactory results.” The error in this approach is that the words of the High Court in CRI026 are not to be examined as though they were part of the Act. The Court adopted this word from a communication of the United Nations Human Rights Committee concerning whether Australia would breach its obligations under the International Covenant on Civil and Political Rights if it were to return a citizen of Senegal to Senegal. In a concurring opinion, one of the members of the committee said:
... The duty of ascertaining the location where adequate and effective protection is available in Senegal does not rest upon the authorities of [Australia]. Their duty is limited to obtaining reliable information that Senegal is a secular State where there is religious tolerance.
57.There is nothing in either CRI026 or the communication from the United Nations Human Rights Committee to suggest that information had to be consistent with all other information before it could support the view that relocation would be reasonable. It may be accepted for present purposes, and without the benefit of any argument from the Minister on the point, that any administrative decision must be based on “reliable” information in the sense that the information must provide a logical basis for the decision-maker to be satisfied of the likelihood of the existence of a fact in issue. Even if “reliable” required more, as suggested by the applicant, it was not, and could not have been, submitted that there was no such information here.
58.The Authority relied on information from sources including DFAT and the UNHCR. It would be surprising if the views of the Australian government or the international agency with responsibility for the Refugees Convention could not be a sufficient basis for determining the question of reasonableness of relocation: see, albeit in a different context, Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 428 (McHugh J).
As in DQA17, the Court here is unable to ascertain any legal principle that requires (or, indeed, even permits) the Court to scrutinise the Authority’s use of country information in detail. This is not surprising as to do so would, in effect, require the Court to override firmly entrenched principles (clearly articulated in NAHI) and engage in an impermissible merits review of the Authority’s decision.
CRI026 does not suggest that the country information relied on by the Authority must be consistent with all of the other information before the Authority before any decision about relocation can be seen to be “reasonable”. Rather, in so far as CRI026 does clarify the role of the Authority in relation to its use of country information, the Court agrees with Judge Smith’s statement in DQA17 that CRI026 simply confirms the basic principle that any administrative decision must be based on “reliable” information in the sense that the information must provide a logical basis for the decision-maker to be satisfied of the likelihood of the existence of a fact in issue.
Further, even if “reliable” here required more, as suggested by the applicant, it cannot be said that the information here was not reliable. The fact that there may have been information inconsistent with the information relied on by the Authority does not mean that the information ultimately relied on to deny the applicant a protection visa was “unreliable”. The Authority relied on information from widely respected governmental and international human rights authorities. To again reference Judge Smith in DQA17, it would be surprising if the views of the Australian government or an international agency charged with monitoring the Convention was not sufficiently reliable to allow the Authority to determine whether this applicant, given his particular factual circumstances, could not return safely to Sri Lanka and live there without risk of harm of the requisite standard.
It cannot be said here that the information relied on by the Authority is not, to apply the definitions suggested by the applicant, “constantly good”, “able to be trusted” or “suitable or fit to be relied on or of proven consistency in producing satisfactory results.”
Nor can it be said that that the Authority erred here because it did not to give reasons for why it preferred specific evidence from some sources over other evidence contained in the same or other sources relied on. To again reference Judge Wilson of this Court in DVI17, how the Authority deals with and assesses the country information before it is a matter for the Authority within the context of the particular factual background to the issues before it. The choice and interpretation of country information is a factual matter for the Tribunal alone: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545; NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419.
On the basis of the above, it cannot be said that the Authority engaged in jurisdictional error of the sort alleged by the applicant. The existence of information that trends against its ultimate finding that a protection visa was not appropriate within the context of this applicant and within the context of this country does not support the contention that the Authority’s main finding was not open to it.
In so finding, the Court highlights and relies on and adopts the comments of Judge Smith in DQA17 (at [59]) as follows:
…the High Court in CRI026 did not overrule the well-established principle that it is a matter for the Authority, and not the Court, to decide what information it accepts: NAHI at [11]. The High Court did not specifically refer to that proposition because it was not relevant to any of the issues before the Court. It is not only a principle stated in a decision binding on me but is also consistent with a long line of authority about the limits of the Court’s role in the judicial review of administrative action: see, for example, Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J).
Conclusion
For the reasons outlined above, the Court concludes that the applicant has not established that the Authority’s decision is affected by jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 30 October 2018
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