ECN17 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1096
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ECN17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1096
File number: SYG 2853 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 25 October 2024 Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether the IAA’s decision was illogical, irrational or legally unreasonable in light of the material before it – jurisdictional error established – writs issued. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth), Part 7AA and ss 5H, 5J, 36 & 46A
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth), Part 3 and rr 11 & 12
Cases cited: Fattah v Minister for Home Affairs [2019] FCAFC 31
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MZZGE v Minister for Home Affairs [2019] FCAFC 72
SZROL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 378
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 25 October 2024 Place: Perth Counsel for the Applicant: Mr J Widjaja (direct access, pro bono counsel) Counsel for the First Respondent: Ms N Gollan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 2853 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ECN17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the second respondent made on 29 August 2017 in file IAA17/01886.
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The Migration Act 1958 (Cth) (the “Act”) was amended significantly on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the Immigration Assessment Authority (the “IAA”). The decision the subject of this judgment is dated 29 August 2017 and predates the amendments to the Act. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the IAA’s decision (or as at the date of any relevant matter referenced in this judgment).
The applicant in this matter is a citizen of Sri Lanka (Court Book (“CB”) 4, 38 & 101-109). He arrived in Australia in October 2012 as an unauthorised maritime arrival (CB 45, 64 & 115).
On 21 December 2015, the then Department of Immigration and Border Protection (the “Department”) wrote to the applicant to advise that the first respondent (the “Minister”) had lifted the “bar” under s 46A of the Act. The applicant was invited to apply for either a Temporary Protection (Class XD) (Subclass 785) visa or a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHEV”) (CB 20-24).
On 27 July 2016, the applicant applied for the SHEV the subject of this review (the “visa”) (CB 25-62 & 242). With his visa application, the applicant provided a statement outlining his protection claims and a copy of his Sri Lankan driver’s licence (CB 63-70). In effect, the applicant claimed to fear harm on the basis of being a wealthy Tamil man with suspected links to the Liberation Tigers of Tamil Eelam (the “LTTE”) (CB 64-68).
On 4 August 2016, the Department acknowledged receipt of the applicant’s visa application and asked him to provide “documentary evidence of [his] identity, nationality or citizenship” (CB 72-83).
On 22 August 2016, the applicant provided copies of his birth certificate and driver’s licence (with translations) (CB 84-88).
On 1 December 2016, the Department invited the applicant to attend a SHEV interview at the Department’s Sydney offices scheduled for 21 December 2016 (CB 89-100).
The applicant attended the SHEV interview on 21 December 2016 and produced the following documents:
(a)a copy of the his (expired) Sri Lankan passport (CB 101-107);
(b)a copy of his Sri Lankan driver’s licence (CB 108-109);
(c)a detention attestation relating to his brother-in-law (CB 110); and
(d)a medical report from Siddha Ayurvedic Base Hospital relating to his son (CB 111).
On 24 January 2017, a delegate of the Minister refused to grant the applicant the visa (CB 115-129).
On 31 January 2017, the matter was referred to the Immigration Assessment Authority (the “IAA”) under Part 7AA of the Act (CB 130).
On 17 February 2017, the applicant provided the IAA with a written submission and a signed statutory declaration (via email) (CB 136-147).
On 20 February 2017, the IAA acknowledged receipt of those documents (CB 148).
On 24 February 2017, the IAA received hard copies of the applicant’s written submission and signed statutory declaration (referenced above), together with a “hyperlinked” list of country information reports (CB 149-162).
On 28 February 2017, the IAA wrote to the applicant (via email) explaining that he was required to provide copies of the country information documents to the IAA rather than hyperlinks (as outlined in the relevant Practice Direction) (CB 163).
On 4 May 2017, the applicant provided various country information reports and articles to the IAA (via email) (CB 169-236).
On 29 August 2017, the IAA affirmed the delegate’s decision refusing to grant the applicant the visa (CB 241-259).
On 14 September 2017, the applicant applied for judicial review of the IAA’s decision in this Court. The applicant also filed an affidavit with his judicial review application (annexing a copy of the IAA’s decision).
APPLICATION TO THIS COURT
As outlined above, the applicant filed an application for judicial review in this Court on 14 September 2017.
On 30 April 2018, an amended application for judicial review was filed by the applicant.
On 9 August 2023, the parties were notified (by email) that the matter had been listed for a directions hearing (by telephone) before this Court on 15 September 2023.
On 10 August 2023, the applicant contacted the Court explaining that he had “very little knowledge of [the] English [language]”, that he was “not computer literate” and did “not have a desktop or laptop at [his] home”. The applicant’s email also stated that he had no legal representation, no income, had sustained three injuries in a workplace accident and was “living on charity handouts”.
On 15 September 2023, the applicant appeared at the directions hearing (by telephone) without legal representation but with the assistance of a Tamil interpreter.
Noting that the applicant was (at that time) not represented and that it had been some time since the matter had been filed, the Court explained to the applicant that his matter would soon be listed for a final hearing, that this Court could only turn its attention to the issue of jurisdictional error in the IAA’s decision and that the Court would do so at the final hearing.
The Court also explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap and took the applicant through the categories of error that are most common in relation to migration decisions of this sort.
Noting the applicant’s correspondence to the Court on 10 August 2023 (outlined above), the Court also considered it appropriate to issue a pro bono referral certificate so that the applicant might obtain legal assistance.
On 20 November 2023, the Court was notified that Mr Jordan Widjaja of counsel (“Mr Widjaja”) had accepted the Court’s pro bono referral and agreed to assist the applicant in this matter. The Court thanks Mr Widjaja for his assistance in this regard. It is very much appreciated.
On 5 April 2024, a further amended application and written submissions were filed in this Court by Mr Widjaja (on behalf of the applicant).
The further amended application for judicial review contains one particularise ground of review which reads as follows:
1.The Immigration Assessment Authority fell into jurisdictional error as it was infected with by irrational, illogical and/or legally unreasonable reasoning.
Particulars
(a)The applicant contended that had a well-founded fear of persecution by Sri Lankan authorities due to imputed links to the Liberation Tigers of the Tamil Eelam (LTTE) (a separatist movement in Sri Lanka).
(b)The IAA concluded that the applicant did not have imputed links to the LTTE (at [25]).
(c)The IAA accepted that the applicant had several interactions with authorities, including being detained for a period of two weeks in early 2009.
(d)The IAA reasoned that the applicant was not of sufficient interest to authorities (and therefore not imputed as having links to the LTTE, as he was released from custody, not charged and not sent to a ‘rehabilitation centre’.
(e)The ‘rehabilitation centres’ were not instituted until the end of the war in May 2009.
(f)The conclusion that there was no imputed links because the applicant was not placed in a rehabilitation centre that was established 4 months after his detention is illogical, irrational or legally unreasonable.
(g)The IAA’s reasoning was material to its assessment as to whether the applicant was a ‘refugee’ for the purposes of s 36(2) of the Migration Act 1958.
On 17 April 2024, written submissions were filed on behalf of the Minister.
On 6 May 2024, Mr Widjaja provided the following two documents to the Court (via email):
(a)the 2017 DFAT country information report for Sri Lanka; and
(b)the 2012 UNHCR eligibility guidelines.
On 6 May 2024, a final hearing was held in this matter before this Court. Mr Widjaja appeared on behalf of the applicant (by video link). Ms Nicola Gollan of counsel (“Ms Gollan”) appeared on behalf of the Minister (also by video link). The Court thanks both Mr Widjaja and Ms Gollan for the clarity of their oral and written submissions in this matter and for the considerable assistance both counsel provided to the Court.
The materials before the Court include a Court Book numbering 259 pages (filed in this Court on 5 December 2017 and marked as Exhibit 1 at the hearing of this matter), the further amended application for judicial review and written submissions filed on behalf of the applicant on 5 April 2024, written submissions filed on behalf of the Minister on 17 April 2024, the 2017 DFAT country information report for Sri Lanka (provided to the Court via email on 6 May 2024 and marked as Exhibit 2 at the hearing of this matter) and the 2012 UNHCR eligibility guidelines (also provided to the Court via email on 6 May 2024 and marked as Exhibit 3 at the hearing of this matter).
THE IAA’S DECISION
The IAA’s decision in this matter is 19 pages long and spans 62 paragraphs (CB 241-259). This includes four pages containing extracts of relevant legislative provisions (CB 256-259).
Noting the confined issue raised by the applicant in the further amended application for judicial review and the submissions made by the parties, it is unnecessary to detail the IAA’s decision in full.
The Court will instead reproduce those (few) paragraphs referenced by the parties in oral and written submissions to this Court. They provide as follows (footnotes omitted) (CB 247-249).
24.The applicant’s claim to have been taken by the STF to their camp for questioning in early 2009 is plausible. In the early months of 2009 the civil war fighting was at its intensity as the army advanced and took control of former LTTE controlled areas. I accept that at this time the applicant was taken and held in two camps for approximately two weeks and that he was questioned about his activities, any LTTE links and that he was mistreated during the period of detention.
25.In assessing whether the applicant was of ongoing interest to the authorities as he claimed I have given significant weight to his account that he was released by the authorities without charge. The authorities had wide ranging powers under the Emergency Provisions in place during the war to detain people with LTTE links, or suspected LTTE links, and at the end of the war the government instituted a rehabilitation program under which LTTE members and many others suspected of having links with the LTTE were detained. Over 11,000 people were detained in rehabilitation at the end of the war and many thousands also went missing in suspected cases of arbitrary killing by the authorities. Had the applicant been suspected of having LTTE or assisting the LTTE I do not accept that he would have been released after questioning.
26.I note his claim that he was monitored by the authorities after his release until his departure some three years later, and that they came to the family home to look for him. However I find it implausible that he was of significant enough interest for the authorities to monitor and follow him for over three years, yet in that time they did not seek to question him about any activities or seek to detain him. Moreover, the claim that the authorities monitored and followed him from 2009 is in conflict with his claim that he was hiding from them by staying at different places.
27.I accept that the applicant’s brother-in-law was detained from April 2009 until the beginning of 2010, as supported by the International Committee of the Red Cross Detention Attestation. I accept that the applicant assisted his brother-in-law during this time by visiting Colombo, engaging a lawyer and that the applicant paid 300,000 rupees to secure his release. However I do not accept the applicant’s account this his brother-in-law was initially arrested in a case of mistaken identity and that the authorities were actually after the applicant. From the applicant’s account the authorities discovered the mistake the same day they detained his brother-in-law. I do not accept that the authorities would have continued to hold the brother-in-law for several months if they had no interest in him; I find that if they had no interest in him they would simply have released him on realising the mistake. Furthermore, if their interest was actually in the applicant, as he claims, I consider they had opportunity after that time to pursue and arrest the applicant. As noted above, the applicant claims that the authorities were monitoring and following him. Despite his claim that he stayed with relatives and friends to avoid the authorities I note that he continued to work after his release from detention, and furthermore he travelled to Colombo to assist his detained brother-in-law, engaged a lawyer and paid the 300,000 rupees to secure his brother-in-law’s release. The applicant’s ability to work and move about Sri Lanka, including travelling to Colombo which was subject to tight security provisions in 2009, lead me to find he was not of interest to the authorities as claimed.
28.The applicant’s brother-in-law was released from detention in 2010 and there is no indication that the applicant, or other family members, have come to the attention of the authorities because of the profile of this brother-in-law.
29.I am not satisfied that the applicant was imputed as having LTTE links, either because of his own activities, the stolen outboard motor, his wealth or his links to his brother-in-law, or that he was of ongoing interest to the authorities after his period of detention and questioning in early 2009. I do not accept his claim that the authorities monitored and followed him, nor that he lived in hiding from them. I do not accept that they continued to visit his family home in search of him. I do not accept that he stayed at the hospital with his son to avoid the authorities or that they enquired about him after he returned home from the hospital.
30.I have found that the applicant was not of ongoing interest to the authorities after questioning and his release in early 2009. It follows that I do not accept that the authorities have continued to visit the family home to ask about him on monthly basis, or up to two to three times per month, from 2012.
…
35.I have not accepted that the applicant was imputed as being an LTTE supporter following his questioning and release from detention in early 2009. However, as Tamil from the former LTTE controlled Eastern Province I accept that the applicant experienced harm during the civil war. Throughout the war, and in the immediate period following, the Tamil population was subject to scrutiny, monitoring, harassment and ongoing checks for links with the LTTE. It was in this environment that the applicant was displaced during communal violence and stopped and questioned in ongoing round up exercises, accused of theft, and that he was physically mistreated by various security authorities and subject to demands for money and use of his equipment.
PARTIES’ SUBMISSIONS
Applicant’s submissions
Applicant’s written submissions
The applicant’s written submissions (filed on behalf of the applicant on 5 April 2024) relevantly provided as follows:
(a)the sole ground of judicial review (as set out in the further amended judicial review application) contends that the IAA fell into jurisdictional error by applying illogical or irrational reasoning in concluding that the applicant did not have imputed links the LTTE. Of particular relevance is paragraph [29] of the IAA’s written reasons which states (emphasis added):
I am not satisfied that the applicant was imputed as having LTTE links, either because of his own activities, the stolen outboard motor, his wealth or his links to his brother-in-law, or that he was of ongoing interest to the authorities after his period of detention and questioning in early 2009.
(b)the LTTE was an armed separatist movement in Sri Lanka. Conflict between the LTTE and the Sri Lankan military began in July 1983 and ended in May 2009. Though the organisation disbanded, the Sri Lankan authorities are sensitive to the possibility of it re-emerging;
(c)the applicant advanced several claims about his interactions with Sri Lankan authorities in support of this primary claim, which were accepted by the IAA. Relevantly:
(i)in 1990, the Army detained the applicant three or four times and questioned whether he was associated with LTTE. Between 1997 and 2004, the applicant was rounded up and detained due to being Tamil. He was questioned about links to the LTTE and beaten. The IAA accepted these claims (see the IAA’s written reasons at [20]). The IAA also accepted that the applicant was beaten and questioned by police over the theft of a ferry motor;
(ii)the IAA accepted that the applicant was viewed as wealthy, was questioned about possible business dealings with the LTTE and that between 2007 and 2009, the Sri Lankan authorities made demands for money and equipment and that the applicant paid the authorities 100,000 rupees (see the IAA’s written reasons at [22]). However, the IAA found that “the authorities did not have ongoing suspicions that [the applicant] worked for the LTTE”; and
(iii)in January or February 2009, the applicant was detained by authorities for a period of two weeks, he was questioned about any LTTE links and was mistreated during his detention (see the IAA’s written reasons at [24]);
(d)the IAA’s ultimate conclusions (at [29] and [35]) stem from its finding at [25], which the applicant submits suffers from illogicality, irrationality or legal unreasonableness (the “impugned finding”). The impugned finding states:
In assessing whether the applicant was of ongoing interest to the authorities as he claimed I have given significant weight to his account that he was released by the authorities without charge. The authorities had wide ranging powers under the Emergency Provisions in place during the war to detain people with LTTE links, or suspected LTTE links, and at the end of the war the government instituted a rehabilitation program under which LTTE members and many others suspected of having links with the LTTE were detained. Over 11,000 people were detained in rehabilitation at the end of the war and many thousands also went missing in suspected cases of arbitrary killing by the authorities. Had the applicant been suspected of having LTTE [sic] or assisting the LTTE I do not accept that he would have been released after questioning.
(e)in analysing the impugned finding, it is apparent that the IAA made sub findings that:
(i)the Sri Lankan authorities instituted a rehabilitation program at the end of the war;
(ii)LTTE members and others suspected of having links with LTTE were detained;
(iii)those detained were placed in ‘rehabilitation’, which appears to reflect the existence of ‘rehabilitation centres’ as detailed in the 2017 DFAT country information report;
(iv)the applicant was released from detention without charge; and
(v)ultimately, if the applicant did have suspected LTTE links, he would not have been released after questioning;
(f)the illogicality of this finding (and particularly from (v) above) arises from the asserted temporal nexus between the applicant’s release in January or February 2009 and the possibility of him being detained in a ‘rehabilitation centre’ at that time. The use of ‘rehabilitation centres’ came at the end of the war which, according to DFAT, was in May 2009 (and as recognised in the impugned finding). It is illogical to conclude that that applicant did not have imputed links because he was not detained in a rehabilitation centre that came into existence four months after his release by the authorities. Importantly, the IAA gave ‘significant weight’ the fact that the applicant was released without charge;
(g)the IAA’s conclusion that the authorities’ interest in the applicant ceased once he was released in early 2009 infects the conclusion in paragraph [26], emphasised by the statement that the applicant “was not of significant enough interest”. These paragraphs (at [25] and [26]) form part of the basis for the IAA’s ultimate conclusion that it was not satisfied that the applicant had imputed links to LTTE and that he was not monitored by authorities;
(h)on the latter point, further illogicality arises as the IAA accepts that (at [35]) “towards the end of the war and the immediate period following, … the Tamil population was subject to scrutiny, monitoring, harassment and ongoing checks for links with the LTTE”. The IAA essentially accepted that the general Tamil population was subject to scrutiny, monitoring, harassment and ongoing checks for links with the LTTE, but that the applicant was not of significant enough interest to be monitored and followed after his release in early 2009 (see the IAA’s written reasons at [26]). This also adds emphasis to the point that a person such as the applicant might be arrested and harassed but not charged, such that the IAA’s finding in [25] is even more perilous;
(i)the non-satisfaction of imputed links to the LTTE was material to the IAA’s conclusion that the applicant does not have a ‘well-founded fear of persecution’ (see the IAA’s written reasons at [25]), and ultimately the assessment of whether he is a refugee under ss 36, 5H and 5J of the Act. Significantly, if the applicant were deemed by the IAA to have an imputed link to the LTTE, then the possibility of the risk of serious harm increases. Notably at [39], the IAA:
(i)referred to the US Department report “Sri Lanka – Country Report on Human Rights Practices 2015”, which reported on rights abuses and cases of harassment, arbitrary arrest, detention and torture of LTTE sympathisers; and
(ii)referred to the International Truth & Justice Project’s report which notes that Tamils with “tenuous” links to the LTTE or low-level cadres continued to be targeted, along with their families;
(j)the 2017 DFAT country information report identifies that while “the great majority” of low profile LTTE members have been rehabilitated and released, those that come to the attention of Sri Lankan authorities may be sent to the remaining ‘rehabilitation centre’ (i.e. arbitrary detention). Low-profile was said to include “those who may have provided a high-level of non-military support to the LTTE during the conflict.” In this context, may can only be understood as a level of suspicion; and
(k)the IAA fell into jurisdictional error by engaging in irrational or illogical reasoning in performing its statutory task to review the decision refusing to grant the applicant’s visa. That irrational or illogical reasoning was material to the ultimate finding that the applicant did not have a ‘well-founded fear of persecution’ and whether he was owed protection obligations under s 36(2) of the Act.
Applicant’s oral submissions
In oral submissions before this Court, Mr Widjaja submitted as follows on behalf of the applicant:
(a)the release of the applicant in early 2009 (with the applicant claiming that the detention occurred in January or February 2009) is the basis by which the IAA says that the applicant was not of ongoing interest to the authorities. That is, because the applicant was released and not put into a rehabilitation centre, he was not of ongoing interest;
(b)the issue of illogicality arises because the rehabilitation centres in question were not set up until some months after that detention and that is really the core issue;
(c)in the circumstances, the IAA cannot use the applicant’s release as being evidence that he was not of ongoing interest;
(d)a further claim was made by the applicant that in March and April 2009 the authorities came to detain him again but detained his brother-in-law instead. Hence, if the IAA is saying that “if the applicant was of ongoing interest they would have come back to detain him”, that is exactly what the applicant is claiming happened;
(e)the IAA accepted that persons of Tamil ethnicity were scrutinised, monitored and harassed by authorities during and towards the end of the civil war and, if that is the case, being arrested and charged is not the marker of whether a person is of ongoing interest;
(f)the applicant submits that paragraph [25] of the IAA’s written reasons clearly related to the rehabilitation centres. The IAA starts by saying that the “authorities had wide ranging powers … during the war to detain people with LTTE links, or suspected LTTE links, and at the end of the war the government instituted a rehabilitation program under which LTTE members and many others suspected of having links with the LTTE were detained”. The IAA then says that “over 11,000 people were detained in rehabilitation at the end of the war” and the conclusion is that, had the applicant been suspected of having LTTE links, the IAA does not accept that he would have been released after questioning. Fairly read, that conclusion must be understood as relating to the rehabilitation centres and cannot be read in any other way;
(g)another subtle point is the language used when the IAA made a positive finding that the applicant “was not of significant enough interest” to the authorities for him to be monitored or followed. The IAA was drawing a conclusion from inferences (with the inference being that the applicant was not detained in a rehabilitation centre at the end of April 2009, but more importantly, after January or February when he was supposed to have been taken captive);
(h)footnote 3 in paragraph [25] of the IAA’s written reasons references the UNHCR eligibility guidelines (tendered as Exhibit 3 in this matter). At page 11 of those guidelines is a reference to similar facts (being that the end of the armed conflict was in April 2009 and a finding that a total of 11,000 individuals with alleged links to the LTTE underwent the rehabilitation process);
(i)the applicant says that is the basis from which the IAA has concluded that the rehabilitation centres were available;
(j)further, the DFAT country information report (tendered as Exhibit 2 in this matter) is where the temporal element comes in. That report (at paragraph 3.34) explains that “since the end of the civil conflict, the Sri Lankan Government has managed a large-scale rehabilitation process for former LTTE”;
(k)this is where the illogicality “comes in” because it is not a basis by which the IAA can determine that the applicant was not of ongoing interest given that his release was some months before the existence of those rehabilitation centres;
(l)should the question of materiality arise, paragraphs [29], [30] and [35] of the IAA’s written reasons refer again to the significance of the applicant not being of ongoing interest (which comes from the fact that he was released and not charged with a crime under the powers that were available at the time);
(m)there are other potential explanations as to why the applicant was not charged (for example, a lack of evidence or a decision that it was not beneficial to do so);
(n)the IAA accepted that the applicant was detained for approximately two weeks, put in different camps and was mistreated (though the applicant says he was tortured and assaulted);
(o)neither the Court nor the IAA know any more about the reasons for the applicant’s release so it simply cannot be assumed that because he was not charged and arrested, that is a reason to suggest that he was of “no ongoing interest”;
(p)the language used by the IAA (particularly in the last sentence of paragraph [25] in its written reasons) talks about the applicant’s release. It does not talk about a future state or any re-detaining of the applicant and that release is linked to the fact that the applicant was released and not placed in a rehabilitation centre; and
(q)it is clear from the IAA’s reasons that a very significant basis upon which the IAA concluded that the applicant was not of ongoing interest was the fact that the applicant was not placed in a rehabilitation centre and was instead released.
Minister’s submissions
Minister’s written submissions
The Minister’s written submissions (filed on behalf of the Minister on 17 April 2024) relevantly provided as follows:
(a)ground one is misconceived. It proceeds on the basis that one of the reasons that the IAA found the applicant was not of ongoing interest to the authorities after 2009 was because he was “not sent to a ‘rehabilitation centre’” (particular (d) in the further amended judicial review application). This is incorrect, and involves a misreading of the IAA’s decision;
(b)in support of ground on, the applicant relies on the IAA’s decision at [24]-[25] (CB 247), where the IAA stated (emphasis added):
24.The applicant’s claim to have been taken by the STF to their camp for questioning in early 2009 is plausible. In the early months of 2009 the civil war fighting was at its intensity as the army advanced and took control of former LTTE controlled areas. I accept that at this time the applicant was taken and held in two camps for approximately two weeks and that he was questioned about his activities, any LTTE links and that he was mistreated during the period of detention.
25.In assessing whether the applicant was of ongoing interest to the authorities as he claimed I have given significant weight to his account that he was released by the authorities without charge. The authorities had wide ranging powers under the Emergency Provisions in place during the war to detain people with LTTE links, or suspected LTTE links, and at the end of the war the government instituted a rehabilitation program under which LTTE members and many others suspects of having links with the LTTE were detained. Over 11,000 people were detained in rehabilitation at the end of the war and many thousands also went missing in suspected cases of arbitrary killing by the authorities. Had the applicant been suspected of having LTTE or assisting the LTTE I do not accept he would have been released after questioning.
(c)it is apparent from the above passages that the IAA found that the applicant was not of ongoing interest to the authorities after he was released from detention in 2009, because if he had been of ongoing interest, he would not have been released after the initial questioning in 2009;
(d)while the IAA referred in [25] to the powers that the authorities in Sri Lanka had both during and after the war, which included the creation of “rehabilitation programs”, the IAA did not make any finding that the fact that the applicant had not been sent to a rehabilitation program was a reason for rejecting his claim that he was of ongoing interest to the authorities;
(e)in those circumstances, particular (d) to ground one is entirely misconceived, as it is clear that the IAA did not reason that the applicant was not of ongoing interest to the authorities because he had not been sent to a rehabilitation program (or centre). Instead, it is clear from the IAA’s reasoning that the reason the IAA found that the applicant was not of ongoing interest to the authorities was that he had been released from detention after initial questioning in 2009 (in circumstances where the IAA considered that if the applicant was of ongoing interest, he would not have been released). There is nothing irrational, illogical or unreasonable about this conclusion, which is not itself challenged by the applicant;
(f)at paragraph [15] in the applicant’s written submission, the applicant submits that “it is illogical to conclude that the applicant did not have imputed links because he was not detained in a rehabilitation centre that came into existence four months after his release by the authorities”. However, for the reasons explained above, it is clear that the IAA did not rely on the fact that the applicant had not been detained in a rehabilitation centre, in reaching its conclusion that the applicant was not of ongoing interest to the Sri Lankan authorities. Instead, the IAA expressly stated that it had given “significant weight to his account that he was released by the authorities without charge” (at [24] of the IAA’s written reasons). This applicant’s written submission at paragraph [15] is therefore misconceived, as it proceeds from a misreading of the IAA’s reasoning;
(g)at paragraph [17] of the applicant’s written submission, the applicant submits that:
… further illogicality arises as the IAA accepts (at [35]) “towards the end of the war and the immediate period following, that the Tamil population was subject to scrutiny, monitoring, harassment and ongoing checks for links with the LTTE”. The acceptance that the general Tamil population was subject to scrutiny, monitoring, harassment and ongoing checks for links with the LTTE, but the applicant was not of significant enough interest to be monitored and followed after his release in early 2009 (per [26]). This also adds emphasis to the point that a person such as the applicant might be arrested and harassed but not charged, such that the IAA’s finding in [25] is even more perilous.
(h)by this submission, the applicant appears to suggest that it was illogical for the IAA to find that the applicant was not of ongoing interest to the authorities after he was released in 2009 (at [25] in the IAA’s written reasons), because the IAA found that “towards the end of the war and the immediate period following … the Tamil population was subject to scrutiny, monitoring, harassment and ongoing checks for links with the LTTE” (at [35] in the IAA’s written reasons). However, there is no inherent inconsistency between these findings. The IAA found that the applicant (as an individual) was not of ongoing interest to the authorities, including because the applicant was released without charge in 2009. This is not inconsistent with the IAA’s finding that Tamils (as a group) continued to experience harm during the war and in the immediate period following the war, including “ongoing checks for links with the LTTE” (at [35] in its written reasons);
(i)in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”), Crennan and Bell JJ described the high threshold for establishing illogicality or irrationality as follows (at [135]):
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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 if there is no logical connection between the evidence and the inferences or conclusions drawn.
(j)it is clear from the above that the IAA in this case did not engage in illogical or irrational reasoning. Rather, the findings that the IAA made were open on the evidence. Contrary to the applicant’s submissions and the particulars to ground one, the IAA did not conclude that the applicant was not of ongoing interest to authorities because he had not been sent to a rehabilitation program. Instead, at [25] of its written reasons, the IAA found that the applicant was not of ongoing interest to the authorities because he was released by the authorities without charge, after his detention and questioning in 2009. There is nothing illogical or irrational about the IAA’s reasoning in this regard.
Minister’s oral submissions
In oral submissions before this Court, Ms Gollan submitted as follows on behalf of the Minister:
(a)there are in fact two propositions in paragraph [25] of the IAA’s decision;
(b)the first proposition is that, during the war, authorities had wide ranging powers under emergency provisions which included being able to detain people with LTTE links;
(c)in the second clause, the IAA states that at the end of the war, the government instituted a rehabilitation program under which LTTE members and those suspected of having LTTE links were detained;
(d)the IAA was simply explaining that in the periods immediately before and after the war, there were powers by which the authorities could detain people with LTTE links;
(e)the determinative reason that the IAA gives in that paragraph as to why the IAA does not consider that the applicant was of ongoing interest is because, even though the applicant was initially detained and questioned about his LTTE links in early 2009, he was then released and that is inconsistent with the applicant being of ongoing interest;
(f)reference to the applicant being released can only be read as a reference to the applicant being released from detention and not a particular detention under the rehabilitation program;
(g)there is no express finding in the IAA’s decision that he was not detained under the rehabilitation program and paragraph [25] of the IAA’s written reasons is simply clarifying that the authorities had a continuing power of detention under two different regimes;
(h)the rehabilitation program was relevant because, at the time when he was making his claims, the applicant had said that he was of ongoing interest throughout 2009 and 2010 (falling within the period where the rehabilitation program was active) and what happened after the war was therefore directly relevant to the claims made by the applicant;
(i)there is nothing illogical or irrational in the reasoning in paragraph [25] of the IAA’s written reasons. At no stage did the IAA find that the reason that the applicant did not have imputed LTTE links was because he was not detained in a rehabilitation centre before the end of the war;
(j)the IAA (in paragraph [25] of its written reasons) was simply providing a description of the various regimes by which the Sri Lankan authorities had the power to detain the applicant (before and after the war);
(k)the fact that the IAA referred to something by way of background is not a basis for which to find that the decision is illogical. It was completely logical for the IAA to have concluded that because the applicant was initially detained and questioned about his LTTE links but was then released (despite the fact that the authorities retained the power to detain him on an ongoing basis) demonstrates that the applicant was not of ongoing interest to the Sri Lankan authorities;
(l)the threshold for illogicality is that no reasonable decision-maker would have reached the same conclusion on the evidence before it and it does not rise to that basis here;
(m)the applicant’s submission that his release is linked to the rehabilitation program is incorrect. If you look at the last two sentences of paragraph [24] in the IAA’s written reasons, they refer to the fact that in early 2009, the applicant was taken and held in two camps for approximately two weeks, was questioned about his activities and his links to the LTTE and was mistreated during the period of detention;
(n)the Minister notes the final sentence in paragraph [25] of the IAA’s written reasons wherein the IAA says “[h]ad the applicant been suspected of having LTTE [links] or assisting the LTTE I do not accept that he would have been released after questioning”. The reference to questioning there is quite clearly a reference to the period of detention in early 2009. There is nothing illogical about that finding and it is in no way connected to the rehabilitation finding;
(o)there is clearly a basis (in paragraph [25] of the IAA’s written reasons) for the IAA’s conclusion and that basis is that, during the war, the authorities had wide ranging powers, including the power to detain people with LTTE links; and
(p)there is a logical basis for that finding and it would be an error to find that the IAA’s reasoning was irrational.
CONSIDERATION
The sole issue in this matter is confined to an assessment of whether the IAA’s decision was illogical, irrational or legally unreasonable.
The applicant’s core concerns centred around the IAA’s findings in one paragraph ( [25]), wherein the IAA determine as follows (emphasis added):
25.In assessing whether the applicant was of ongoing interest to the authorities as he claimed I have given significant weight to his account that he was released by the authorities without charge. The authorities had wide ranging powers under the Emergency Provisions in place during the war to detain people with LTTE links, or suspected LTTE links, and at the end of the war the government instituted a rehabilitation program under which LTTE members and many others suspected of having links with the LTTE were detained. Over 11,000 people were detained in rehabilitation at the end of the war and many thousands also went missing in suspected cases of arbitrary killing by the authorities. Had the applicant been suspected of having LTTE or assisting the LTTE I do not accept that he would have been released after questioning.
The applicant also claims that the Tribunal’s ultimate findings (at paragraphs [29] and [35] in its written reasons) stem from the IAA’s findings at paragraph [25] of its reasons (as outlined above). Those paragraphs provide as follows:
29.I am not satisfied that the applicant was imputed as having LTTE links, either because of his own activities, the stolen outboard motor, his wealth or his links to his brother-in-law, or that he was of ongoing interest to the authorities after his period of detention and questioning in early 2009. I do not accept his claim that the authorities monitored and followed him, nor that he lived in hiding from them. I do not accept that they continued to visit his family home in search of him. I do not accept that he stayed at the hospital with his son to avoid the authorities or that they enquired about him after he returned home from the hospital.
…
35.I have not accepted that the applicant was imputed as being an LTTE supporter following his questioning and release from detention in early 2009. However, as Tamil from the former LTTE controlled Eastern Province I accept that the applicant experienced harm during the civil war. Throughout the war, and in the immediate period following, the Tamil population was subject to scrutiny, monitoring, harassment and ongoing checks for links with the LTTE. It was in this environment that the applicant was displaced during communal violence and stopped and questioned in ongoing round up exercises, accused of theft, and that he was physically mistreated by various security authorities and subject to demands for money and use of his equipment.
The applicant claims that the IAA erred in finding that, because he had been released from detention (after questioning and without charge) instead of being placed into a rehabilitation centre, that meant that he was not of ongoing interest to the authorities.
The Minister submits that, when read with paragraph [24] of the IAA’s written reasons, the reference to the applicant’s release in the last sentence of paragraph [25] in the IAA’s reasons can only be a reference to the applicant’s detention in early 2009 (mentioned in paragraph [24] of its reasons) and cannot, and should not, be taken as referencing the rehabilitation centres which were not operational at the time of the applicant’s detention (in early 2009).
For clarity, the Court again reproduces these two paragraphs from the IAA’s written reasons, as follows:
24.The applicant’s claim to have been taken by the STF to their camp for questioning in early 2009 is plausible. In the early months of 2009 the civil war fighting was at its intensity as the army advanced and took control of former LTTE controlled areas. I accept that at this time the applicant was taken and held in two camps for approximately two weeks and that he was questioned about his activities, any LTTE links and that he was mistreated during the period of detention.
25.In assessing whether the applicant was of ongoing interest to the authorities as he claimed I have given significant weight to his account that he was released by the authorities without charge. The authorities had wide ranging powers under the Emergency Provisions in place during the war to detain people with LTTE links, or suspected LTTE links, and at the end of the war the government instituted a rehabilitation program under which LTTE members and many others suspected of having links with the LTTE were detained. Over 11,000 people were detained in rehabilitation at the end of the war and many thousands also went missing in suspected cases of arbitrary killing by the authorities. Had the applicant been suspected of having LTTE or assisting the LTTE I do not accept that he would have been released after questioning.
Thawley J discusses the principles of illogicality and irrationality in SZROL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 378 (citing Besanko, Farrell and Thawley JJ in MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] and Heydon J in SZMDS at [78]), and relevantly states:
46.As to illogicality, in MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] (Besanko, Farrell and Thawley JJ) the Full Court stated :
A decision might be shown to be affected by jurisdictional error if:
(1)no rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ);
(2)there is no logical connection between the evidence and the inferences drawn: Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] (Perram, Farrell and Thawley JJ);
(3)there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132].
47.An error in logic is only established by identifying a conclusion which could not logically have been reached. An error in logic is not established by showing that an alternative path of reasoning could have led a reasonable mind to a different conclusion. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [78], Heydon J stated:
The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.
48. Crennan and Bell JJ at [131] stated:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, 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.
49.The identification of illogical or irrational reasoning or fact finding is in aid of determining whether the decision was affected by jurisdictional error. It is not sufficient simply to identify a particular step in reasoning, or a conclusion of fact, that is not logical. The lapse in logic must be of such a nature that it can be seen to take the ultimate decision outside of the jurisdiction conferred by the particular statute. This will require that the lapse in logic be material in the sense described in MZAPC v Minister for Immigration and Border Protection (2021) [2021] HCA 17; (2021) 95 ALJR 441.
The Court finds the IAA’s reasoning (at paragraph [25] in the IAA’s written reasons) to be quite problematic.
Arguably, what the IAA concludes is that over 11,000 people were detained in rehabilitation centres at the end of the war and that, had the applicant been suspected of having LTTE links or having assisted the LTTE, the applicant would not have been released. This suggests that the IAA considered that the applicant would have been placed in a rehabilitation centre if he were suspected of having LTTE links.
As submitted by the applicant, the “issue” with this conclusion or assessment arises because the applicant was detained for a period of two weeks in early 2009 (noting that the applicant claimed he was released in January or February 2009). The detention centres were not instituted until the end of the civil war conflict – that being in April or May 2009.
As per the relevant jurisprudence (outlined above), a decision can be affected by jurisdictional error if there is no logical connection between the evidence and the inferences drawn (see Fattah v Minister for Home Affairs [2019] FCAFC 31 (“Fattah”) at [45]), if there is an irrational or illogical step in reasoning (and that faulty step affected a material conclusion) (see SZMDS at [132]) or if no rational or logical decision-maker could have arrived at the decision based on the same evidence (see SZMDS at [130]-[131]).
The Court disagrees with the Minister’s submission that the reference to the applicant’s release in the last sentence of paragraph [25] in the IAA’s reasons can only be a reference to the applicant’s detention in early 2009 (mentioned in paragraph [24] of its reasons). The Court considers that, if that were the case, the IAA would have (and should have) referenced the applicant’s release from detention in paragraph [24] of its reasons. It did not.
Context matters – particularly when assessing a protection claim.
Here, the IAA (at the start of paragraph [25] of its written reasons) seemingly considers a new issue. This is evidenced by the use of the words “[i]n assessing whether the applicant was of ongoing interest to the authorities as he claimed I have…”. The IAA then mentions the “wide ranging powers” that the authorities had during the war and goes into some detail about post-war rehabilitation centres and the number of people detained in those centres (citing the UNHCR guidelines). Finally, the IAA ends the paragraph by stating that, if the “applicant had been suspected of having LTTE [links] or assisting the LTTE, I do not accept that he would have been released after questioning”.
Read as a whole, paragraph [25] of the IAA’s reasons clearly focuses on the applicant’s release and its connection to government instituted rehabilitation centres.
The Court considers that the IAA in this matter drew an illogical inference based on the evidence before it. That is, there was no logical connection between the evidence that the applicant was detained and released in January or February 2009 and the inference that the applicant would have been placed in a detention centre (rather than being released) if he were of ongoing interest to the authorities because the detention centres in question did not exist at the time of the applicant’s release: Fattah at [45]. Importantly and contextually, these rehabilitation centres were instituted some months after the applicant had been released.
Further, within the context of this matter, and for the reasons set out above, no other logical or rational decision-maker could have arrived at the conclusion that, if the applicant were of ongoing interest to the authorities, he ought to have been placed into a (not yet existent) detention centre: SZMDS at [130]-[131]. If another decision maker had done so then that too would have been an error of the sort this court is tasked with identifying. Two wrongs do not make a right.
As to whether any such error is material, as explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (“LPDT”), the appropriate test is “whether the decision that was in fact made could, not would, ‘realistically’ have been different had there been no error”: LPDT at [14] (emphasis in original). The Court considers that, had the IAA not illogically considered the authorities failure to place the applicant in a rehabilitation centre (particularly a centre that was not yet in existence) as evidence that he was not of ongoing interest to the authorities, the outcome in this matter could have been very different.
The Court is satisfied that the IAA’s reasoning is illogical or irrational and, on that basis, the IAA has fallen into jurisdictional error.
CONCLUSION
The further amended application for judicial review filed on behalf of the applicant on 5 April 2024 has identified jurisdictional error in the IAA’s decision (dated 29 August 2017).
As outlined above, the ART commenced on 14 October 2024 (established by the commencement of the Administrative Review Tribunal Act 2024 (Cth) on that same date). The Consequential Act made significant amendments to, and included transitional provisions relating to, a number of Commonwealth Acts. This included repealing Part 7AA of the Act which dealt with the IAA and IAA decisions.
The Acts (referenced at [61] above) are supported by various pieces of subordinate legislation, including the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth) (the “Transitional Rules”). Part 3 of the Transitional Rules deals with the IAA and provides that this Court can do anything in relation an IAA matter that it could have done prior to the commencement of the ART, including (importantly) remitting an IAA decision for reconsideration (see rule 11(3) of the Transitional Rules). Further, where the Court remits a decision of the IAA to the ART (in accordance with rule 11 of the Transitional Rules), the proceeding for review by the ART is taken to be a proceeding for review of a reviewable protection visa decision under Part 5 of the Act (see rule 12(3) of the Transitional Rules).
The IAA’s decision will, accordingly, be set aside and the matter will be remitted to the ART for reconsideration.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 25 October 2024
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