EBD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 1089
•15 September 2022
FEDERAL COURT OF AUSTRALIA
EBD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1089
Appeal from: EBD16 v Minister for Immigration and Border Protection [2021] FCCA 1176 File number(s): VID 343 of 2021 Judgment of: ROFE J Date of judgment: 15 September 2022 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia decision dismissing application for judicial review of a decision of the Immigration Assessment Authority (IAA) – where IAA had affirmed a delegate of the Minister’s decision to refuse the appellant’s application for a Safe Haven Enterprise Visa – whether IAA failed to engage with appellant’s representations about his risk of serious harm owing to his disability – whether IAA acted irrationally in making findings giving rise to alleged internal inconsistencies – whether IAA acted irrationally in making findings based on inferences which were not put to the appellant – appeal allowed Legislation: Migration Act 1958 (Cth) Cases cited: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
The Republic of Nauru v WET040 [No 2] [2018] HCA 60
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 61 Date of hearing: 29 March 2022 Counsel for the Appellant: Edwina Smith Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Andrew Yuile Solicitor for the First Respondent: Mills Oakley ORDERS
VID 343 of 2021 BETWEEN: EBD16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
ROFE J
DATE OF ORDER:
15 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the Federal Circuit Court of Australia made on 1 June 2021 be set aside and in lieu thereof the appellant’s application filed 22 December 2016 and amended on 18 December 2020 be allowed.
3.The decision of the second respondent be quashed and the matter be remitted to the second respondent to rehear and re-determine according to law.
4.The first respondent pay the costs of the appeal of the appellant and also pay the costs of the proceeding before the Federal Circuit Court of Australia.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROFE J:
This is an appeal from a decision of the Federal Circuit Court of Australia (as it then was) (FCCA). In September 2016, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) refused the appellant’s application for a Safe Haven Enterprise Visa (SHEV). That decision was affirmed by the Immigration Assessment Authority (IAA) in December 2016. The appellant sought judicial review of the IAA’s decision in the FCCA, which dismissed the appellant’s application.
BACKGROUND
The appellant is a 47 year old citizen of Sri Lanka of Tamil ethnicity and Catholic faith. The appellant is deaf and understands oral communication by lip reading. He does not speak English and requires an interpreter.
The appellant arrived in Australia in 2012. He applied for the SHEV the subject of this appeal on 18 March 2016. On 20 September 2016 a delegate of the Minister refused to grant the appellant the SHEV.
The circumstances giving rise to the appellant’s protection claims primarily relate to his religion, ethnicity, and disability. The appellant’s written submissions before the FCCA (and quoted at [3] of the FCCA reasons) outlined the factual particulars of his claims as follows:
i.The Applicant is deaf and understands oral communication by lip reading.
ii.In 1997 he was taken to Point Pedro by the Sri Lankan army (the SLA) on suspicion of being a member of the LTTE, interrogated and harassed. When the SLA realised he had hearing difficulties they let him go.
iii.After he began operating a business selling vegetables, the SLA would harass him whenever they went past the shop. Because he was running a business, they would constantly ask him if he was supporting the LTTE. Sometimes if an SLA officer saw him on the street they would grab him by his shirt and ask if he was a member of the LTTE.
iv.In 2006 he travelled to Malaysia to see if he could live there. He returned to Sri Lanka after two weeks. When he returned the SLA interrogated him about where he had gone. He didn’t tell them he had departed Sri Lanka; he said he had been in Sri Lanka the whole time.
v.In December 2011 an officer of the SLA came to his house and took him to an SLA camp. His wife came with him so she could communicate with them because of his hearing problem. He was accused of supporting the LTTE by supplying goods and money from his business. He was interrogated and beaten about his “activities” and then released after about half an hour after they saw that he could not hear.
vi.SLA officers kept coming into the shop and harassing them, accusing them of working with the LTTE; he was kept under surveillance. He was afraid of what might happen so he stopped working and left only his wife in the shop.
vii.On 2 January 2012 he was kidnapped in a white van and taken to Pallai where he was held for one day, beaten continuously and threatened with a knife. The more he told them that he could not hear what they were saying the more they hit him. He urinated on himself. He was released after paying them the 113,000 rupees that were in his pocket.
viii.The following day his wife made a complaint to the Human Rights Commission of Sri Lanka about his detention and beating but nothing happened.
ix.He feared that he would be abducted again and that next time, he may be tortured or even disappeared, so he decided to leave Sri Lanka and travel by boat to Australia.
The appellant made the following claims in two statutory declarations in support of his SHEV application (summarised in the appellant’s written submissions before the FCCA and extracted at [3] of the FCCA reasons):
i.He believes because he is deaf he is more vulnerable to interrogation, beatings and torture from the army. On the most recent occasion when he told the officers he was deaf it made them beat him more as he did not understand what they were saying and could not do what they asked.
ii.Since being in Australia the army have continued to harass his wife at the shop and ask where he is. In 2013 they went to the family home and asked about him and searched the house. They found his passport and confiscated it. He suspects they have continued to visit but his wife does not tell him as [s]he does not want to worry him.
iii.The authorities cannot protect him. The police did not act when his family complained after he was abducted and the UNHCR did nothing.
THE IAA DECISION
The IAA decided not to grant a protection visa to the appellant and published reasons dated 9 December 2016. Ultimately, the IAA did not accept that the appellant met the requirements of the definition of ‘refugee’ in s 5H(1) of the Migration Act 1958 (Cth) (Act), and thus did not meet the refugee criteria in s 36(2)(a).
A summary of the IAA reasons appears at [4] of the FCCA reasons. The IAA made the following key findings relevant to the issues in this appeal.
(a)The IAA accepted that the appellant has a hearing disability, and noted that this had given rise to inconsistencies in his evidence. However, the IAA generally did not accept these inconsistencies as material, having regard to the appellant’s disability and his clarifications (at [10]).
(b)The IAA accepted that in 1997 the appellant was taken to Point Pedro and questioned by the SLA in relation to LTTE involvement “as part of a routine round-up of young Tamil men” (at [13]) (the 1997 Incident).
(c)The IAA accepted that from time to time, between 1997 and 2005, the applicant was harassed by security forces who suspected he may have been supporting the LTTE through his business. The IAA noted that the incidents described by the appellant “are consistent with the monitoring and harassment experienced by many Tamils in the north by security forces at that time” (at [14]).
(d)The IAA did not accept that the appellant was questioned by the SLA in 2006 upon his return from Malaysia (at [17]).
(e)The IAA accepted that in 2011 the appellant was questioned by the SLA in relation to LTTE support (the 2011 Incident). The IAA noted that the appellant’s evidence regarding the 2011 Incident had been inconsistent, and ultimately accepted the appellant’s original account: that his wife had accompanied him to the SLA camp where he was detained for half an hour before urinating on himself and being let go. The IAA also did not accept that the appellant was beaten during that time (at [18]).
(f)The IAA accepted that in 2012 the appellant was abducted by a white van and beaten by unknown persons; and that he was released by his captors after paying them a sum of money (the 2012 Incident). However, the IAA did not find anything to indicate that the abduction was connected to his earlier questioning by the SLA. The IAA noted that the appellant’s evidence about who had abducted him had changed over time — the appellant’s earlier statements had not identified the captors, while in later statements the appellant said it was likely they were SLA or CID [Criminal Investigation Department]. The IAA also referred to country information about the prevalence of “white van” abductions in Sri Lanka (at [19]–[20]).
(g)The IAA did not accept that the appellant went into hiding for six months after the 2012 Incident. The IAA inferred that the appellant remained at home in the months between the 2012 Incident and the appellant’s travel to Australia (at [21]).
(h)The IAA did not accept that the appellant had been beaten on numerous occasions, and found that the appellant had exaggerated aspects of his claim. However, the IAA accepted that the appellant was subjected to one incident of physical harm as a result of the 2012 Incident.
(i)The IAA was not satisfied that the appellant would be a person of interest to the Sri Lankan authorities, noting that the appellant’s past experiences were typical for many Tamils during the war in Sri Lanka but that the monitoring and harassment of Tamils has decreased since the end of the conflict (at [25]).
(j)The IAA was not satisfied that the appellant has a well-founded fear of persecution, noting that apart from the 1997 Incident, the 2011 Incident and the 2012 Incident the appellant was able to establish and run a successful vegetable selling business for over 20 years, providing support to his family throughout (at [29]).
(k)The IAA accepted that the appellant will be identified by authorities as an illegal departee and failed asylum seeker upon his return to Sri Lanka, and further accepted that this means he will likely be questioned and fined but not subject to a custodial sentence on return (at [30]–[34]).
(l)The IAA did not accept that the appellant’s hearing impediment would put him at a risk of harm upon return to Sri Lanka, noting that discrimination on the basis of disability is prohibited under Sri Lankan law and that the appellant has demonstrated an ability to manage himself and his life notwithstanding his disability (at [36]).
(m)The IAA considered the appellant’s claims cumulatively — his profile as a hearing impaired Tamil businessman who has previously been questioned regarding suspected LTTE support, has been kidnapped for extortion, and who would be a failed asylum seeker and illegal departee on return to Sri Lanka — but did not accept that these, taken together, would mean he was of adverse interest to authorities upon return (at [40]).
THE FCCA DECISION
As noted above, the FCCA reasons referred to the circumstances giving rise to the appellant’s claims, and those claims, at [3]. The FCCA then extracted and adopted the Minister’s summary of the IAA reasons at [4].
The FCCA rejected the appellant’s three grounds of appeal. Grounds 1 and 3 before the FCCA are relevant to this appeal. It is not necessary to discuss the findings in detail here, as I discuss the relevant parts of the decision later, but in summary:
(a)Ground 1, which mirrors ground 1 before this Court, essentially contended that the IAA had failed to consider the appellant’s personal vulnerability (being his deafness) in its assessment of whether the appellant would face serious harm on return to Sri Lanka. The FCCA concluded at [30] that it was open for the IAA to conclude that the appellant, even with his disability, did not face serious or significant harm.
(b)Ground 3, which mirrors ground 3 before this Court, alleges irrationality in the IAA’s decision. The FCCA outlined its conclusions on this ground at [62]–[65], rejecting that the IAA decision contained internal inconsistencies or other alleged irrational findings.
GROUNDS OF APPEAL
The appellant filed a notice of appeal on 29 June 2021, outlining three grounds of appeal. The appellant no longer presses ground 2.
Ground 1
Ground 1 alleges that the primary judge erred by finding no error in the IAA’s conclusion that the appellant would not suffer serious harm as a result of detention in Sri Lanka. Ground 1 was put in the following terms:
The Learned Judge erred by finding that the Authority did not err by concluding that the applicant would not suffer serious harm as a result of being detained in Sri Lanka.
Particulars
a.The Authority’s statutory task under Part 7AA of the Migration Act 1958 (Cth) (the Act) is to determine whether or not the criteria for the grant of a protection visa have been met.
b.The Authority accepted that the applicant would be investigated, prosecuted and punished as a result of his membership of a particular social group, namely, failed asylum seekers in Sri Lanka. The Authority also accepted the possibility that the applicant’s status as a failed asylum seeker meant that he would be detained in overcrowded and unsanitary conditions.
c.The applicant clearly expressed his frailty and the particular risks of harm that detention presents for him given his disability.
d.The Learned Judge should have found that, in reaching its conclusion that the treatment of the applicant would not amount to persecution within the meaning of the Act, the Authority failed to consider whether detention of the applicant would expose him to a risk of serious harm given his disability, frailty and personal circumstances.
e.Further or alternatively, the Learned Judge should have found that the Authority failed to engage a genuine and active intellectual process with respect to significant and clearly expressed representations and evidence by the applicant about the risk of serious harm arising from detention.
[Citations omitted.]
In summary, the appellant submits that the IAA had failed to engage in a genuine and active intellectual process with respect to the appellant’s representations about the risk of serious harm. In particular, the appellant contends that the IAA failed to consider the appellant’s claim that being deaf meant he was more vulnerable to physical or psychological harm if detained and interrogated on his return to Sri Lanka as a failed asylum seeker.
The respondent summarises its position regarding ground 1 as follows:
In respect of Ground 1, there was no failure on the part of the IAA to consider the appellant’s claim to fear serious harm in detention because he was deaf. The IAA expressly considered this issue, but found against the appellant. The Judge below was correct to find that this ground sought only merits review. The reasons of the IAA on this point were not extensive, but the comments that appear demonstrate sufficient consideration (and determination) of the appellant’s claims.
In determining whether the IAA gave the required consideration to the appellant’s claims, it is of course necessary to examine those claims — however, as submitted by the respondent, the court must be careful not to slide into the realm of impermissible merits review: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30].
There appear to be two related issues that emerge under this ground. The first is the precise nature of the claim put forward by the appellant, as this determines the content of what the IAA was required to consider. The second is the question of whether the IAA gave sufficient consideration to the appellant’s claim that his deafness would result in serious harm.
It is well-established that the IAA is required to give an active intellectual consideration to the claims (and essential integers of said claims) put forward by an applicant; as well as any unarticulated claims that clearly emerge from the materials before it: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18]. A failure to consider a substantial or significant and clearly articulated claim may constitute jurisdictional error: Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar) at [41].
Counsel for the appellant conceded that the appellant did not expand on his claimed vulnerability owing to his disability, however it was submitted that the appellant’s increased vulnerability to physical assault or to psychological distress “clearly emerged from the materials”. The particular materials cited in support of this submission were:
(a)One passage from the appellant’s statutory declaration dated 15 March 2016:
… I believe that because I am deaf I am more vulnerable to interrogation, beatings and torture at the hands of the army. While on some occasions when I said I was deaf the army let me go, on the most recent occasion when I told the officers I was deaf it made them beat me more. I do not understand what they are saying and cannot do what they ask. Being deaf makes me more of a target for persecution by the army and less able to look after myself or defend myself. If there is no one to communicate for me I will be helpless.
(b)One passage from the appellant’s statutory declaration dated 25 July 2013, describing the 2012 Incident:
They beat me continuously. I could not hear them properly (I have had a hearing impediment since I was six years old). I kept telling them that I could not hear them and the more I said that the more they hit me. I urinated on myself. They had a knife and they threatened me.
(c)The appellant’s written submission to the IAA (referred to at [36] of the IAA Reasons) that being a Tamil with a hearing impediment would make the appellant stand out as a vulnerable failed asylum seeker if he were forcibly returned to Sri Lanka.
Having regard to these materials, it is still difficult to identify the precise nature of the harm claimed by the appellant. It may be accepted that the materials above give rise to the claim that the appellant would face certain challenges during an interrogation by Sri Lankan authorities upon return to the country. But it is unclear how those challenges, relating primarily to communication, amount to physical and psychological harm; or how the appellant’s deafness would make him “stand out”. At most, it could be said that a risk of physical harm emerges from the materials, given the possibility that the appellant would not be able to defend himself if beaten.
I also note that the particular factual findings made by the IAA regarding the 2011 Incident and the 2012 Incident somewhat weaken the submission that the claims clearly emerge from the materials. For example, the IAA did not accept that the 2012 Incident was related to the Sri Lankan authorities, so while the IAA accepted that the appellant was the victim of a violent attack, it is unclear how those materials support the claim that the appellant will be vulnerable during interrogation by authorities. Further, while the IAA accepted that the 2011 Incident involved Sri Lankan authorities, it did not accept that the appellant was beaten on that occasion.
As the primary judge noted at [27]–[28] of the FCCA reasons:
…[T]he applicant, with the assistance of his adviser, did not spell out for the Authority the precise issue that his deafness created. The applicant’s counsel was unable to articulate the issue during oral submissions in this court. Counsel seems to have considered the point to be self-evident.
It seems to me that it is not self-evident that this particular applicant’s deafness, in conjunction with his other circumstances, would amount to a real risk of the applicant facing serious or significant harm if interrogated. On the applicant’s own evidence, he was able to tell his interrogators that he is deaf. On his own evidence, he is able to lip read. On his own evidence, he had successfully operated his own vegetable shop for 20 years by lip reading. On his own evidence, he has been given a hearing aid in Australia. The applicant’s evidence means that it was open to the Authority to conclude that, even with his disability, the applicant did not face serious or significant harm.
The first respondent submits that it has been unclear how the appellant puts his claim that his deafness amounts to a real risk of the appellant facing serious harm if interrogated on his return to Sri Lanka. Where a claim does not clearly emerge from the materials before the IAA, it is not required to consider it.
In any event, as the first respondent submits, the IAA identified the claim and considered it at [36]:
The applicant’s representative has submitted that his profile as a Tamil with a hearing impediment would make him stand out as a vulnerable failed asylum seeker if he is forcibly returned to Sri Lanka. The submission does not expand on this claim or detail in what way the applicant’s disability would render him particularly vulnerable on return over and above his status as a returning asylum seeker. I note that Sri Lankan law and the constitution prohibit discrimination based on disability and while instances of discrimination on this basis occurred during 2015, there is no information before me about the circumstances in which it occurred or whether those circumstances would apply to the applicant. The applicant has, in my view, demonstrated an ability to manage himself and his life notwithstanding his disability and while I accept that sometimes it may take the applicant more time to understand and communicate because of his hearing problem, I do not accept that this puts him at risk of harm.
The appellant submits that the passage above, and the passage at [40] extracted below, do not demonstrate meaningful consideration with the claims:
… I have also considered the applicant’s claims cumulatively. The applicant’s profile as a hearing impaired Tamil businessman who has in the past been questioned about imputed LTTE support and who has been kidnapped for extortion and who will be returning as a failed asylum seeker and illegal departee does not suggest, taken together, that he will be on return a person of adverse interest to the authorities. I am not satisfied the applicant has a well-founded fear of persecution.
The appellant concedes that in the passages at [36] and [40] the IAA “formally considered” the representations about the appellant’s disability and the risk of harm if he were detained and interrogated by Sri Lankan authorities, however, submits that the passages demonstrate that the IAA failed to engage in a genuine and active intellectual process.
As the appellant stated, there is of course a distinction between a decision maker merely noting that a representation has been considered, and meaningful consideration evident from a set of reasons. As the full court of this Court said in Omar at [39]:
Giving meaningful consideration to a clearly articulated and substantial or significant representation… requires more than [the decision-maker] simply acknowledging or noting that the representations have been made.
The Court also said in Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 at [45]:
The Court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard.
However, this is not a case where there has been no consideration beyond a generalised statement that the IAA had considered the claimed harm because of the appellant’s deafness. The IAA’s reasons, though not extensive, demonstrate that the decision maker dealt with the claims beyond simply stating that the issue had been considered.
As the first respondent states, the IAA reasons demonstrate that it engaged with the claims made by the appellant. As can be seen from [36], the IAA acknowledges the claim (and its somewhat vague terms). Despite the imprecise nature of the claim, the IAA engages with the claim: first by noting that discrimination on the basis of disability is prohibited in Sri Lanka; and second by considering the appellant’s past, in particular how his disability may have impacted previous dealings (presumably with authorities). While it can be said that this passage does not expressly identify, for example, the appellant’s claims about previous interrogations in the 2011 Incident, it is clear that the IAA has had regard to those claims when reading the reasons fairly and as a whole.
In considering this ground, the FCCA found that the IAA’s reasons at [36] demonstrated that it had undertaken an active intellectual process. The FCCA held at [19]–[20]:
The applicant submitted… that the Authority had failed to engage in an active intellectual process in relation to the claim that detention and interrogation of the applicant would constitute serious harm in the light of his disability. That submission is unsustainable, in view of paragraph 36 of the Authority’s reasons for decision, where the Authority said:
… The applicant has, in my view, demonstrated an ability to manage himself and his life notwithstanding his disability and while I accept that sometimes it may take the applicant more time to understand and communicate because of his hearing problem, I do not accept that this puts him at risk of harm.
Clearly, the active intellectual process undertaken by the Authority did not arrive at the conclusion the applicant wanted. However, that does not mean an active intellectual process was not undertaken. This ground is basically seeking impermissible merits review.
The FCCA further concluded at [30] that, on the facts as found, it was open for the IAA to conclude that the appellant, even with his disability, did not face a real risk of serious or significant harm.
As I have identified no error in the FCCA’s conclusion, ground 1 is not made out.
Ground 3
Ground 3 alleges that the primary judge erred in not finding various conclusions irrational or illogical.
The Learned Judge erred by not finding that the Authority’s conclusion that the Applicant did not face a risk of persecution because of suspected LTTE connections was irrational or illogical.
Particulars
a.The Authority accepted that the Applicant was detained and questioned in relation to support for the LTTE.
b.Despite that acceptance, the Authority concludes that there is ‘no evidence that the applicant was targeted on the pretext of LTTE connections’.
c.The Learned Judge should have found that the Authority’s conclusions about the risk of persecution of the Applicant because of suspected LTTE connections were internally inconsistent. The evaluation of the risk of harm to the Applicant was – affected by irrational or illogical findings of fact.
Two separate and independent limbs to ground 3 emerged in the written and oral submissions. The first limb concerns several alleged internal inconsistencies in the IAA’s reasons. The second limb concerns the IAA’s inference that the appellant did not go into hiding for the months prior to coming to Australia.
The Full Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [35] described the task in assessing illogicality as follows:
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
In WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 (WAIJ), Lee and Moore JJ in an appeal from a refusal of a protection visa described the role of the Tribunal in the following terms:
16. … [T]he Tribunal, subject to a qualification provided in s 416 that is not relevant in this case, is required to consider all relevant material and after having regard to that material make the necessary findings of fact required to support the determination made by the Tribunal.
17 The principal criterion for the grant of a protection visa under the Act is that the applicant have a well-founded fear of persecution for reason of race, religion, nationality, membership of a particular social group or political opinion. A fear of persecution is a well-founded fear if it is shown by the nature of past events, and/or the prospect that such events may occur in future, that there is a risk that the applicant may suffer persecution if returned to the country of nationality. The risk so described is one that is real and not fanciful. It is not a requirement that the risk be measurable as to degree of likelihood or probability. (See: Chan Yee Kin v Minister For Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per McHugh J at 417).
18 The role of the Tribunal in conducting a review under the Act is to assess whether the material presented indicates that there is a real possibility that if the applicant were returned to the country of nationality events involving the applicant may occur which would constitute persecution of the applicant. If so, the Tribunal will be satisfied that the applicant qualifies for the grant of a visa and, pursuant to s 65(1) of the Act, must grant the visa applied for … If the material does not show that such a risk exists the visa must be refused.
19 In carrying out that assessment, involving as it does a determination of great importance to an applicant, the Tribunal must act “judicially” and according to law. …
…
21 Failure of the Tribunal to act “judicially” will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act “judicially” and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Bond per Deane J at CLR 366-367). That is to say, the Tribunal cannot determine the matter by a “tossing a coin” or by making a “snap decision” or by acting on instinct, a “hunch” or a “gut-feeling”.
22 The requirement that the review procedure be carried out according to law, is an irreducible duty arising out of s 75(v) of the Constitution. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow, Hayne JJ at [170]). Failure to observe that requirement will mean that the purported decision of the Tribunal has no “jurisdictional” foundation. (See: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34], [37]; Kirby J at [116], [127]-[128]). The Tribunal only obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [145]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]; Hill v Green (1999) 48 NSWLR 161 per Spigelman CJ at [72]). A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result. It is because it is based upon such findings that the determination is an unreasoned decision. Such findings or inferences of fact become part of, and are not distinguishable from, the decision subject to judicial review. (See: S20/2002 per McHugh, Gummow JJ at [54]; Bond per Mason CJ at 338, 359-360). A review culminating in such a decision would be a process lacking practical fairness or justice and would not be a process conducted according to law.
23 The Tribunal is instructed by the Act to determine whether a protection visa is to be granted to an applicant or refused. In effect the outcome of that adjudication depends upon whether the Tribunal is satisfied that the applicant is a refugee within the meaning of that term as used in the Convention. (See: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh, Gummow JJ at 275-276). The requirement that the Tribunal be so satisfied is a “jurisdictional fact” and not a state of mind formed at the Tribunal’s discretion. The satisfaction, or lack thereof, must be determined reasonably, that is, properly, according to the principles set out above. (See: Eshetu per Gummow J at [134]-[146]).
24 The importance of the Tribunal’s function and acknowledgement of the foregoing principles is recognised by s 430 of the Act which requires the Tribunal to explain its decision by providing a written statement that sets out the findings made by the Tribunal on material questions of fact, the evidence or material relied upon for those findings, and the reasons of the Tribunal. (c.f. W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55 at [47]-[52]).
(Emphasis added.)
For the reasons that follow, the IAA did not act “judicially” in the sense described in WAIJ. Its conclusion that it was not satisfied that the appellant met the requirements of s 32(2)(a), is based on a process of reasoning that includes inferences of fact that were not grounded upon probative and logical evidence. As such, the primary judge erred in failing to quash the decision for jurisdictional error and the appeal must be allowed.
The first limb of ground 3 concerns the IAA’s conclusion that the appellant did not face a risk of persecution due to suspected LTTE connections. This limb of ground 3 rests on two alleged inconsistencies in the IAA reasoning.
The first inconsistency is said to arise from the finding at [26], in relation to the 2012 Incident, the IAA found:
There is also no evidence that the applicant was targeted on the pretext of LTTE connections…
The appellant submits that the conclusion at [26] is inconsistent with other findings in the IAA’s reasons, in particular the finding at [25]:
I have accepted that he was detained and questioned by the SLA on two occasions (1997 and 2011) in relation to support for the LTTE, financially or otherwise.
The second inconsistency alleged by the appellant arises from the “no evidence” finding at [26] and the finding at [29], that there were “instances which [the IAA accepts] occurred during which the applicant was questioned regarding LTTE support”.
In other words, the appellant submits that the IAA acted irrationally in finding there was no basis for holding that the 2012 incident was not based on suspected LTTE connections, while it found that the 1997 Incident and the 2011 Incident were motivated by suspected LTTE connections and accepted that the appellant had been questioned during the incidents.
This submission must fail. When examined in context the various conclusions are not inconsistent, and the IAA outlined its reasoning in making them.
The IAA accepted at [25] that the appellant was detained and questioned by the SLA in the 1997 Incident and the 2011 Incident in relation to LTTE support. However, the IAA also found that the appellant’s experience was typical of that experienced by many Tamils during the war and its immediate aftermath. The IAA here drew a distinction between the appellant being a person of interest specifically targeted by authorities; and a person who was questioned during more general round ups of young Tamil men. The IAA also expressly drew this distinction at [13] in relation to the 1997 Incident. Having made these distinctions, it was open for the IAA to not be satisfied that the appellant is a person of interest to Sri Lankan authorities.
This particular submission was also run in the FCCA, which concluded at [62]–[63]:
There is no inconsistency… The Authority’s decision rests on the well-known distinction in Sri Lanka between targeted arrests and general round ups of young Tamil men. In paragraph 13 of its reasons for decision, the Authority specifically stated that the applicant was questioned in 1997 “as part of a routine round-up of young Tamil men”. In paragraph 11 of his statutory declaration declared on 15 March 2006, the applicant said, in relation to the 2011 incident:
Tamils running businesses were often suspected of supplying money and goods to the LTTE.
That is, the applicant’s 2011 interrogation was not targeted, but was part of the general questioning of Tamil businessmen. The fact that the applicant was not targeted on this occasion is highlighted by him being released after only 30 minutes and not beaten.
I respectfully agree with the FCCA’s conclusions.
Looking particularly at the 2012 Incident, the IAA acknowledged at [26] that while white-van disappearances began as a campaign to identify LTTE supporters, country information indicates that many abductions are for the sole purpose of extorting money. Because the appellant was released when he handed over money, the IAA was satisfied that the motive behind the abduction was financial. Despite finding that the other incidents were connected to suspected LTTE support, this conclusion was open to the IAA given the appellant’s account of the 2012 Incident and the country information the IAA cited.
The second limb of ground 3 relates to the IAA’s rejection of the appellant’s claim that he went into hiding after the 2012 Incident up until he left for Australia some six months later, and the related inference purported to be drawn by the IAA. At [21], the IAA stated:
I do not accept the claim made by the applicant at [sic] interview that he went into hiding after this incident and decided to leave. The applicant was not asked any questions about this claim, however, he did not claim to have moved away from his home to go into hiding, he simply stated he did not do any business in the period between the kidnap incident and when he left for Australia on 27 July 2012. I infer from this that the applicant remained at his family home for the six months after being kidnapped before he left, during which time the SLA could have found the applicant at any time if he had been of any interest to the authorities. In his SHEV interview he claimed that while nothing happened after this incident he was afraid he would be abducted again; he thought he might not only be beaten but tortured or even disappeared. When the delegate asked him about this claim, the applicant stated he thought it was going to be terrible to live there and that each previous time they had beaten him and he managed to get out a few times but this was not going to happen for long. I do not accept that the applicant was in hiding for the six months before he left Sri Lanka nor do I accept the applicant’s statement ‘that each previous time they had beaten him’.
The reason given by the IAA for its failure to accept the appellant’s claim that he went into hiding after the 2012 Incident was that the appellant did not expressly claim that he moved away from his home to go into hiding. This was in circumstances where, as the IAA noted at [21], the appellant was not asked any questions about his claim about going into hiding in the SHEV interview. Nor, as the appellant submitted, had the Delegate raised any concerns about the truth of the hiding claim in its own decision.
After rejecting the hiding claim, the IAA went further and made two positive inferences. First, that the appellant remained at the family home for six months after the 2012 Incident, and second, that the appellant was not of any interest to the authorities as the SLA could have found him at home at any time during the six months if he had been of interest.
The appellant submits that the IAA’s approach to assessing the reliability and credibility of the appellant’s evidence is inconsistent with the remarks of the Full Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (AVQ15). In AVQ15, the Full Court acknowledged at [28] that in assessing inconsistencies in the evidence of asylum seekers, decision makers must be aware of the particular challenges facing asylum seekers and consider whether there is an acceptable explanation for any inconsistency. The Full Court noted that while those matters are of course for the decision maker to weigh and evaluate, the decision maker must perform their task reasonably and fairly.
The first respondent submits that the factual inference that the appellant had remained at home was open to the IAA on the material before it, and it followed that the conclusion that the appellant had not “gone into hiding” was also open to the IAA. The respondent submits that the decision-maker did not require any evidence to find that the claim was implausible, referring to The Republic of Nauru v WET040 [No 2] [2018] HCA 60 at [29] and [35]. The first respondent further submits that there is limited utility in the appellant’s reliance on AVQ15, given the different factual and legal circumstances of that case.
Counsel for the appellant acknowledged in oral submissions that the remarks in AVQ15 arose in the context of an applicant making inconsistent statements at different points in time, however, counsel submitted that the principles have broader application to how a decision-maker should approach the evidence of a person seeking protection. I accept this submission. When considering the evidence of a person seeking protection, the decision maker is required to remain conscious of the particular challenges facing that person in giving their account. The Full Court in AVQ15 at [28] gave the use of an interpreter as an example of the challenges such a person might face.
The appellant faced particular challenges in communicating. He did not speak English and required an interpreter for the SHEV interview. The same of course can be said of many of those seeking asylum in Australia, however, the appellant is also deaf and has taught himself to read lips. His hearing disability meant that his participation in the SHEV interview was dependent upon his reading the lips of the Tamil interpreter.
The IAA acknowledged at [10] that the appellant’s disability and his problems in communication may have impacted his evidence given throughout the process. The IAA noted that the appellant had stated at the SHEV interview that sometimes he struggles to understand what is put to him but that he is usually able to understand once the question has been repeated. It noted that the appellant had, unprompted, corrected and explained a number of apparent omissions and inconsistencies. The IAA stated that due to the challenges posed by the applicant’s disability, where appropriate it had given the appellant the “benefit of the doubt”.
However, the IAA appears to have disregarded the specific challenges faced by the appellant in giving his account in the SHEV interview when at [21] it rejected his claim that he went into hiding after the 2012 Incident. Even while acknowledging the specific challenges faced by the appellant in communicating, and that the appellant had not been asked any questions about his claim, the IAA concluded that the appellant’s claim to have gone into hiding must not be accepted due to his failure to expand upon what he meant by “hiding”. In reaching this conclusion the IAA failed to give any meaningful consideration to the appellant’s specific vulnerability and how that might have impacted upon the articulation of his claim to have gone into hiding.
Similarly, the IAA failed to give any meaningful consideration to the specific challenges faced by the appellant when it went on to draw the two positive inferences: that the appellant remained at his family home for six months, and that he was not of interest to the Sri Lankan authorities, on the basis of his failure to elaborate what his ‘hiding’ entailed in the SHEV interview.
The particular challenges faced by the appellant were in addition to those faced by many persons seeking asylum outlined by the Full Court at [28] in AVQ15, including that they may reasonably expect an interview will provide an opportunity for them to elaborate on their account. The appellant faced challenges in communication as outlined above. The interviewer did not ask the appellant any questions about his claim that he went into hiding, or to elaborate on what he meant by “hiding” or what that entailed.
When regard is had to the specific circumstances of the particular challenges with communication faced by the appellant, and the absence of any questioning as to what he meant by “hiding”, there was no logical or probative evidence or material before the IAA from which it could draw the two inferences that the appellant remained at his home, and that he was not of interest to the Sri Lankan authorities.
The two inferences formed part of the evidence as a whole considered by the IAA in reaching its decision at [25] that it was not satisfied that the appellant was a person of interest to the Sri Lankan authorities. That finding was integral to the process of reasoning along the way to the IAA deciding at [40] that it was not satisfied that the appellant met the requirements of s 36(2)(a). That ultimate decision is based on illogical and irrational inferences of fact.
It follows that the FCCA erred in its conclusion at [65] and limb 2 of ground 3 should be upheld.
CONCLUSION
For these reasons, the appeal should be allowed. The orders of the FCCA should be set aside and in lieu thereof the appellant’s application filed 22 December 2016 and amended on 18 December 2020 should be allowed. The IAA’s decision should be set aside and the appellant’s application remitted for determination according to law.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe. Associate:
Dated: 15 September 2022
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