EDS16 v Minister for Immigration
[2018] FCCA 2271
•30 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDS16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2271 |
| Catchwords: MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority – application for protection visa – unauthorised marine arrival – claim of persecution on the basis of ethnicity, political opinions or member of a particular social group – fast track decision – nature of review – failure by applicant to particularise grounds of review – country information central to decision – real chance – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5; 5H; 5J; 35A; 36(2); 46A; 65; 473 |
| Cases cited: BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179 SZNXA v Minister for Immigration & Citizenship [2010] FCA 775 Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 BSJ16 v Minister for Immigration & Border Protection [2017] FCAFC 78 NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 Minister for Immigration v Jia Legeng (2001) 244 CLR 427 SBBA v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCAFC 90 Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 Minister for Immigration & Border Protection v Singh (2003) 231 FCR 437 Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR611 Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Border Protection v SZUXN [2016] FCA 516 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | EDS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 447 of 2016 |
| Judgment of: | Judge Brown |
| Hearing date: | 21 March 2018 |
| Date of Last Submission: | 21 March 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 30 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ford |
| Solicitors for the Applicant: | Hugh Ford |
| Counsel for the First Respondent: | Mr O'Leary |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | Submitting appearance |
ORDERS
The application filed 30 December 2016 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 447 of 2016
| EDS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks a judicial review of a determination of the Immigration Appeals Authority,[1] made on 9 December 2016. In the relevant decision, the IAA confirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection,[2] made on 18 August 2016, not to grant the applicant a protection visa, pursuant to the provisions of the Migration Act 1958.[3]
[1] Hereinafter referred to as “the IAA”
[2] As the Minister for Home Affairs was previously known hereinafter referred to as “the Minister”
[3] Hereinafter referred to as “the Act”
The applicant is a citizen of Sri Lanka, who arrived at Australian territory, by boat, on 8 November 2012. As such, he is classified, under the relevant provisions of the Act, as an unauthorised marine arrival. One of the effects of this classification is to prevent him being automatically able to seek any form of visa, under the Act, to remain in Australia, unless the Minister provides his authorisation to make such an application.
Once the legislative bar to the making of a visa application has been lifted by ministerial authority, the provisions of the Act, as amended by the Migration & Maritime Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 apply. In general terms, the amendment provide for a fast track review process in respect of unauthorised maritime arrivals to Australia, in respect of whom the Minister has lifted the bar.
In particular, section 5 of the Act was amended to include a definition of a fast track applicant. Such a person is one:
(i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii) who has made a valid application for a protection visa in accordance with the determination; or
Section 5(1) also defines what is meant by the term fast track decision. In general terms, it is a decision to refuse to grant a protection visa to a fast track applicant. It is common ground between the parties that the applicant in these proceedings is a fast track applicant, given the circumstances surrounding his arrival in Australia.
Background
The applicant is a Tamil by ethnicity and Hindu by religion. Prior to his departure from Sri Lanka, he lived in the Mullaitivu District, of North Province, Sri Lanka. It is his case that he is at risk of suffering persecution because of his ethnicity, religion and other aspects of his background, particularly his political affiliations, if returned to Sri Lanka.
Specifically, the applicant claims that, in early October 2012, officers from the criminal investigation division of the Sri Lankan military came to Mullaitivu and questioned him on the basis of their suspicions he was a member of the LTTE.[4] Thereafter, he claims that he was detained in a military camp, for approximately a fortnight, during which he was subject to further interrogation and torture.
[4] The Liberation Tigers of Tamil Elam
As a consequence of this treatment, the applicant claims that he decided to flee Sri Lanka to ensure his own protection. He claims that if he is returned to Sri Lanka, he is at risk of suffering further persecution, due to his ethnicity as a Tamil and political opinions imputed to him as a suspected member of the LTTE.
He further claims that, if returned to Sri Lanka, he will be identified as a member of the particular social group of failed asylum seeker to Australia, which will also lead to him being singled out by the Sri Lankans for further adverse attention.
On 28 August 2015, the Minister lifted the bar, pursuant to section 46A of the Act, so far as the applicant was concerned. This enabled him to make a valid application, for a protection visa, as a consequence of his claims to be at risk of suffering persecution, if returned to Sri Lanka.
As a consequence of this ministerial intervention, pursuant to section 65 of the Act, the Minister, and any person delegated by him, is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
Section 35A creates a category of visas, under the Act, known as protection visas. This category includes a class of temporary visas, known as safe haven enterprise visas (SHEV) or temporary protection visas (TPA).
Prior to this ministerial intervention, the applicant would not have otherwise been able to make such an application, given his unauthorised manner of entry into Australia. As such, pursuant to the Act, he became a fast track applicant, who application is subject to specific provisions for review, contained in Part 7AA of the Act, relating to fast track decisions.
In general terms, all unsuccessful protection visa applicants, designated as fast track applicants, must undergo a review process, to be conducted by the IAA, on the review material required to be forwarded to it, by the Secretary of the Department, [5] pursuant to sections 473CA & 473CB of the Act.
[5] Hereinafter referred to as “the Secretary”
On 16 October 2015, the applicant applied for a SHEV. The application was supported by a written statement, which contained an account of the applicant’s claims, regarding his treatment in Sri Lanka in October of 2012.
The applicant was assisted, in his application, by a migration agent. The advisor provided the Department with country information in respect of the ill treatment of failed Sri Lankan asylum seekers and in respect of torture, in Sri Lanka, since 2009, including in the Mullaitivu area.
He provided a three page statement, dated 18 September 2015, in support of his claim, which he described as being a summary.[6] In this context, he reserved the right to provide further information in support of his claim at any later interview. He further indicated that he had been unaware of the relevance of statements, made by him in respect of his claim, when he first arrived at Christmas Island and was interviewed by departmental officers.
[6] See Case Book at pages 54 - 56
In his statement of 15 September 2015, the applicant confirmed his Tamil and Hindu background and that he originated in the northern province of Sri Lanka. He indicated that he been interrogated, detained and tortured by the CID between 2/3 October 2012 until 17 October 2012.
He was detained at a central location, in his village, and then taken by military truck to an army camp, at which he detained for around eight days, during which he was interrogated on alternate days and physically mistreated.
On 13 April 2016, the applicant was formally interviewed by the Ministerial Delegate. During the course of this interview, he further claimed to have been detained, between 2008 and 2010, at the Chettilkulam Camp, during which he had been detained and tortured by the CID, whilst being interrogated about his involvement with the LTTE.
During the course of this interview, the delegate put to the applicant what she viewed as discrepancies between what the applicant had said to departmental authorities, when he first arrived in Australia on 4 December 2012 and what he had said at his first formal entry interview, which occurred on 18 December 2012 and what he had subsequently said to her.
Following this interview, the applicant’s advisor provided the Ministerial Delegate with a further written submission. The applicant’s submissions can be summarised as follows:
·The applicant had consistently maintained having been detained, interrogated and physically assaulted, in October 2012, by the Sri Lankan CID;
·The interview of 4 December 2012 was truncated and necessarily, as a consequence, the applicant by necessity had to leave out detail;
·The applicant had been confused by the disjointed questioning of the delegate occurring on 13 April 2016. In these circumstances it was submitted that any perceived date discrepancies were due to the confusing nature of the questioning;
·By way of clarification, the applicant now indicated that he had been detained on at least three occasions, once in the camp, and twice in his village;
·A psychologist report of the applicant was provided, which indicated a diagnosis of severe depressive condition indicative of a post-traumatic stress syndrome;
·In the opinion of the psychologist concerned, the applicant’s psychological profile was consistent with the history of trauma and traumatisation claimed by him;
·In addition, the psychologist concerned opined that any compromised ability to recall dates and times accurately, particularly in regards to traumatic events, was likely to be attributable to the psychological stress and pressures implicit in any application for refugee protection;
·The applicant had a sufficiently high profile, which would cause him to be of interest to the authorities, if returned to Sri Lanka, because of the following matters;
ØHe is a Tamil from the North;
ØHe had already come to the attention of the Sri Lankan authorities who had imputed to him a political status based on connections to the LTTE;
ØHe had scars on his back, which would likely arouse suspicion that he had been involved in fighting in the civil war, which therefore increased the risk of being imputed as a former member/supporter of the LTTE;
ØHis age was within the range of those of particular interest to the Sri Lankan authorities;
·Photographs were provided of the scarring on the applicant’s back;
·Further country information was provided.[7]
[7] See Case Book at pages 180 – 195
On 18 August 2016, the Ministerial Delegate declined to provide the applicant with the SHEV, on the basis that he did not satisfy the criteria for the grant of a protection visa under section 36(2)(a) and section 36(2)(aa) of the Act. This refusal engaged the review function, required under Part 7AA of the Act, by the IAA, which is the subject of these proceedings.
The applicable legal framework under the Act
The criteria required to be satisfied, in respect of a SHEV, are set out in Schedule 2 to the Migration Regulations 1994 particularly subclass 785 and 790. In general terms, the applicant for such a visa is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-found fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·there is a real chance the applicant would be persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
Subsection (2A) defines significant harm. It includes being subject to torture; being subjected to cruel or inhumane treatment; and degrading punishment and treatment. This is known as the complementary protection criterion.
Accordingly, the issue to be determined by the Ministerial Delegate and subsequently by the IAA, in conducting its review function, prescribed under Part 7AA, was whether there was a real chance the applicant would be subject to persecution, if returned to Sri Lanka because of his Tamil ethnicity; his political opinions; or because he was a member of particular social group, namely failed asylum seekers.
Provision relating to fast track decisions
The Minister is required to refer decisions, relating to fast track applicants, to the IAA, for a limited form of review [section 473BA] as soon as reasonably practicable [section 473CA] after a decision is made. In the current matter, the decision was referred to the IAA on 23 August 2016 and a decision made by the IAA on 3 December 2016, which affirmed the delegate’s decision.
Section 473CB sets out the material, which the Secretary of the Department[8] must provide to the IAA. It includes the reasons of the delegate; any material provided by the applicant concerned to the original decision-maker; and any other material considered to be relevant.
[8] Hereinafter referred to as “the Secretary”
Section 473CC provides as follows:
(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
The procedure of the IAA and how it is to conduct its fast track review function is delineated in section 473DA, particularly what application the rules of natural justice have to fast track matters, including any requirement to refer documents to an applicant for comment. The section reads as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB indicates that a fast track review is to be conducted only in respect of the material referred to the IAA by the Secretary without accepting or requesting any new information or interviewing the applicant concerned. In the jargon of administrative review, the review arising under Part 7AA is to be “on the papers” alone.
In this context, the IAA’s authority to access additional review material, to that provided to it by the Secretary, is limited and delineated exhaustively in Subdivision C of Part 7AA. Section 473DC grants the IAA a discretion to obtain new information not previously before the Minister at time of decision if it might be relevant.
However, the IAA is under no obligation or duty to obtain such information regardless of whether it is requested to do so by the applicant whose case has been referred to it or any other person [see section 473DC(2)].
In addition the exercise of the discretion is subject to the satisfaction of two cumulative but overlapping consideration,[9] provided by section 473DD, namely:
·The IAA is satisfied that there are exceptional circumstances sufficient to justify it considering such material; and
·The applicant concerned satisfies the IAA the new information:
·either could not have been provided to the Minister at time of decision; or
·is credible personal information not previously known and had it been known, may have affected the consideration of the claims made.
[9] See BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 at [9] per White J
If the IAA is satisfied that such exceptional circumstances arise, it is required, pursuant to section 473DE, to give the information so obtained to any referred applicant whose fast track review is being considered by it.
As a consequence of the Full Court decision in BMB16 v Minister for Immigration & Border Protection[10] it is clear that the function of the IAA is to evaluate, for itself, the review material provided under section 473CB together with any new information it obtains and then to either affirm the delegate’s decision or remit the decision for reconsideration, in accordance with such directions or recommendations as are permitted under the Regulations. Accordingly, it is open to the IAA to reach a different conclusion to the delegate in respect of matters arising in the review in question.
[10] BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179
The delegate’s decision
The delegate accepted that the applicant was a Tamil and Hindu and was who he said he was, namely a former resident of the Mullaitivu district of Sri Lanka. It was further accepted that he had been injured by a shell blast in 2008, which had led him to live in a displaced persons camp, between 2008 and 2010, at Menik Farm in the Chettikulam Vavuniya district.
The delegate noted that the applicant’s claims about being mistreated at the Chettikulam Camp, in 2008/10 had not been raised in his original written statement. The delegate found that the applicant had not raised any reason for this omission.
The delegate further considered it to be the case that the applicant had conflated the Chettikulam Vavuniya Refugee Centre with the Chettikulam Camp. This caused the delegate to disbelieve the applicant’s claims of persecution in the period 2008/10. The delegate said as follows:
“I also accept that while residing in Sri Lanka Refugee Centre the applicant was subjected to general questioning by the authorities. Nevertheless, I found the applicant’s response relating to the claimed torture at the Sri Lankan Refugee Centre to be, at times, exaggerated and I am not satisfied that he was recalling events from his past. Further to this, the claimed incident was not included in his written statement or raised in any previously dealings the applicant has had with the Department. I, therefore, find that while residing in the Sri Lankan Refugee Centre (or Chettikulam Campas referred to by the applicant)he was not harmed (tortured) by the Sri Lankan authorities, specifically the CID, for his perceived involvement or knowledge of the LTTE. ”[11]
[11] See Court Book at page 205
The delegate accepted that the applicant had been taken from his village and detained, at an army camp, in 2012, where he was questioned both by the Army and CID but it was further found that he had been subsequently released because he was not of interest to the Sri Lankan authorities.
In respect of the applicant’s claims of having been mistreated, during this period, the delegate found that the details provided of these incidents, to be vague and inconsistent such that she did not find him to be credible. In this context, she did not accept the psychological evidence then available to her that the applicant would have difficulty outlining his claims for protection.
Essentially, the delegate found that the applicant did not have any personal profile with the Sri Lankan authorities, who had no interest in him and his claims for protection were unreliable and exaggerated.
On the basis of country information, the delegate did not accept the applicant would suffer persecution solely on the basis that he was a Hindu Tamil. The delegate also noted that the applicant had never claimed to be an actual member of the LTTE and as such, it was considered that he would not be potentially targeted on the basis that his age and ethnicity fitted the profile of a member of the organisation. A similar view was taken in respect of his membership of the group of failed asylum seekers.
The new information
Prior to the IAA’s consideration of the material referred to it by the Secretary, the applicant submitted a further statement of his claims and a more extensive psychological report dated 22 September 2016. The documents were provided by his advisor on 26 September 2016. The statement raised new claims relating to the applicant’s mistreatment at the Chettikulum Camp; and significant level of familial connections with the LTTE.
Specifically, the applicant claimed he had been stripped naked and sexually assaulted, whilst under interrogation at Chettikulum, in 2008, which he had not revealed earlier because of the embarrassing and sensitive nature of his ill-treatment and the fact that at Christmas Island and at ministerial decision stage, his interviewer had been female.
In addition, he provided extensive details of his familial connection to the LTTE, which included close family members holding senior positions within it and actively taking part in hostilities against the Sri Lankan Army. He asserted that he had not revealed these significant connections to the LTTE out of fear that this would potentially raise his profile in detention in Australia and come to the notice of authorities in Sri Lanka, who might target his family there; and might prejudicially affect his claim for asylum, as the Australian Government regarded the LTTE as a terrorist organisation.
The applicant further claimed that, because his family’s close ties to the LTTE were known to the Sri Lankan Government, CID members regularly visited his family in Sri Lanka and made inquiries about his whereabouts. His family have responded to these inquiries by denying having any knowledge of where the applicant is. However, the CID have indicated that they are aware the applicant has escaped to Australia. The fact that the CID have this information causes the applicant to be more fearful about his safety, if returned to Sri Lanka.
The psychological report opined that the applicant was severely depressed, agitated and fearful at the prospect of possibly being returned to Sri Lanka. The psychologist concerned noted the particularly severe impact, on its victims, of torture involving sexual assault and indicated his view that the applicant’s psychological presentation was consistent with a person who had been tortured in this way, which was also likely to prevent the person concerned providing a clear narrative and accurate recall of what had happened to them, particularly in stressful circumstances, such as a refugee assessment interview.
The IAA’s decision
The IAA accepted that the psychological report of 22 September 2016 was new information, within the parameters provided by section 473DD, as it had not been available at the time of the delegate’s decision and there were exceptional circumstances to justify its consideration.
In addition, the IAA also accepted that the new claims, regarding the applicant’s allegation of having been sexually abused, at Chettikulum, in 2008, was also new information, which could be considered under section 473DD.
The IAA did not take the same approach in respect of the new information relating to the applicant’s familial involvement with the LTTE and his claims that his family, in Sri Lanka, is under surveillance there. In this context, the IAA did not accept that this was information, which could not have been provided earlier to the Ministerial Delegate and nor could it be regarded as being credible personal information, which was not previously known.
In respect of the allegation of sexual torture, the IAA noted the psychological evidence recently provided and accepted that trauma suffered by the applicant might impact upon his ability to recall these claims or discuss them at interview, particularly with female officers.
The IAA did not accept that the photographs provided by the applicant’s advisors of his scarring could be regarded as new information as it was not satisfied that these photographs could not have been provided to the Ministerial Delegate prior to the initial decision being made. In this context, the IAA said as follows:
“… I note that an earlier series of photos was provided to the Department, which I have considered and I accept is the applicant. Considering everything before me, I am also not satisfied that there are exceptional circumstances to justify considering this new information.”[12]
[12] See casebook at page 273 [16]
Under the heading well-founded fear of persecution, the IAA found as follows:
·The applicant’s evidence throughout the application had been inconsistent in several key claims. In particular, he had made no reference to his detention and mistreatment at Chettikulum in 2008 until the IAA interview.
·The IAA accepted that the two psychological assessments provided some support for the applicant’s claims of past harm at the hands of Sri Lankan authorities. In addition, the assessments provided some explanation for discrepancies in the applicant’s evidence, particularly in respect of omissions and discrepancies with dates and the timing of his various claims.
·In this context, apart from these discrepancies, the IAA found the applicant’s evidence to be otherwise clear, spontaneous [and to give] the impression of a truthful account.
·The IAA also accepted that the applicant’s account of his past experience, as a displaced Tamil, accorded with country information in respect of other displaced Tamils in the north of Sri Lanka.
In all these circumstances, after weighing the information provided to it, the IAA found as follows:
·The applicant and his family had been displaced from their home, during the civil war, and had spent time in various prison camps, which had been traumatic and dangerous.
·The applicant’s uncle had gone missing in 2006 and his aunt had been killed in a shell blast.
·The applicant himself had suffered a serious back injury, during shelling, in 2008 and had been hospitalised.
·Significantly, it was accepted that the applicant had been detained at Chettikulum, between 2008 and 2011, during which period he had been questioned, interrogated, threatened and both physically and sexually tortured during a two week period, during which he was likely questioned about his knowledge of the LTTE.
·The applicant and his family had been released from Chettikulum in mid-2011 and had returned to their home village, where daily life was difficult, because of the severe impact of the war. During this period, the applicant and his family were subject to some attention from the Sri Lankan Army and the CID, who asked questions about their involvement with the LTTE.
·In this context, it was accepted that the applicant had been taken for a severe interrogation, by the CID, in 2012, during which he was questioned in respect of his involvement with, and knowledge of, the LTTE.
·In this context, the IAA found that the first four days of the relevant interrogation were harsh but thereafter there was a more normal interrogation and the applicant’s release was secured through the intervention of members of his family and a local official from his village.
·Thereafter, as was the case with many young Tamil males, it was accepted that the applicant had been subjected to ongoing questioning and monitoring by the Sir Lankan authorities, prior to his departure from Sri Lanka.[13]
[13] See casebook at page 274-275 [25]-[30]
Accordingly, the IAA accepted that the applicant had in the past suffered a significant level of harm, in Sri Lanka, because he was a Tamil and had been subject to the attention of the authorities because of suspicions he was associated with the LTTE. It was also accepted that other young Tamil males, similar to the applicant, had been subjected to systemic and discriminatory conduct, in Sri Lanka.
However, notwithstanding these findings, the IAA found that contemporary country information indicated that the situation for Tamils, in Sri Lanka, had recently significantly improved. In this context, the IAA found as follows:
“While I accept the difficult conditions faced by Tamils during, and immediately after the civil war, as assessment of recent country information demonstrates that Tamils, including Tamils from former conflict areas, no longer face a real chance or real risk of serious or significant harm from authorities or any other groups on the basis of their ethnicity, or any profile related to their age and gender, religion or for being from a former LTTE-controlled or conflict area. The country information before me indicates that the situation in the country has improved considerably for Tamils from former conflict areas in the north (and east) of the country, significantly so since the commencement of the new Sirisena government”.[14]
[14] See casebook at page 276 [33]
The IAA also found that country information provided by the UNHCR and DFAT supported this finding and risks of serious harm, to Tamils in Sri Lanka, from the relevant authorities, was confined to actual former combatants and members of the LTTE, which the applicant had never claimed to be.
In all these circumstances, the IAA did not consider that the applicant had any profile or connection with the LTTE. Accordingly, whilst it was accepted that the applicant had been mistreated in 2012, during which he had been questioned about his knowledge of the LTTE and profile with it, this did not support his proposition that he was at risk of being targeted again on this basis. Rather, the IAA found that the applicant’s detention, in 2012, was part of a broader round up of Tamils in the applicant’s area. In this context, the IAA found as follows:
“…I acknowledge that his family and a local official negotiated his release, but I am satisfied that this could not have occurred if the CID genuinely suspected him of being involved with the LTTE, or having intelligence on the group. I acknowledge they agreed for him to report weekly, but note that reporting and monitoring was not uncommon during this time. I also find that his relative young age, and the fact that he was in a camp between 2008 and 2011, was likely and indicator that he was too young and unable to have any LTTE profile prior to this”[15].
[15] See casebook at page 277 [41]
In all these circumstances, the IAA did not consider that the applicant had maintained any profile with the Sri Lankan authorities, since his release in 2012 and his risk of being targeted again, by the persons who had previously mistreated him was remote. It also found the applicant’s evidence, in respect of the circumstances surrounding his illegal departure from Sri Lanka, to be vague and inconsistent.
The IAA accepted that, as a young Tamil male, potentially returning to live in the north of Sri Lanka, it was likely that he would suffer some degree of societal discrimination because of his ethnicity, but this of itself would not constitute serious harm, given country information indicated that the situation had improved for ordinary Tamils, including in areas of Sri Lanka formerly controlled by the LTTE.
In these circumstances, the authority concluded that there was not a real chance of the applicant being harmed for reasons of his ethnicity, or his profile as a young Tamil male from the north of Sri Lanka or for any actual or imputed suspected connection to the LTTE.[16]
[16] See casebook at page 280 [54]
The IAA accepted that the applicant had departed Sri Lanka illegally but noted that many thousands of Tamils had also illegally left the country but had been able to return without suffering significant levels of harm. In these circumstances, the Authority did not assess that the applicant was subject to a real chance of suffering persecution because of his status as a failed asylum seeker.
It also accepted that, whilst there was a possibility the Sri Lankan authorities would discover that the applicant, on his return to Sri Lanka, had been detained in Chettikulum and previously interrogated by the CID there in 2012, his otherwise low profile with the authorities would not lead to a real chance of him being harmed, as a failed asylum seeker, even if he was charged with having departed the country illegally.
It was also found, by the IAA, that the applicant did not meet any of the complimentary protection criteria. In all these circumstances, the IAA affirmed the Ministerial Delegate’s decision.
Grounds for review
The applicant’s grounds for review are lengthy, un-particularised and not easy to distil. Doing the best I can, they are summarised as follows:
1. The IAA failed to take into account relevant considerations.
2. The IAA fell into jurisdictional error, by failing to give due weight to the evidence of the applicant.
3. The IAA did not assess the applicant’s evidence fairly and gave undue weight to minor inconsistencies.
4. The IAA failed to take into account the applicant’s evidence regarding his family’s surveillance in Sri Lanka.
5. The IAA failed to give weight to the psychological material provided in respect of the claims of torture and sexual assault.
6. The IAA did not consider the photographic evidence sought to be provided to it.
7. The IAA ignored relevant evidence from the applicant.
8. Having found that there was evidence that the applicant had been tortured, the IAA erroneously found that the applicant was not at risk of suffering serious harm, if returned to Sri Lanka.
9. The IAA failed to properly consider relevant country information.
In his written submissions, counsel for the Minister, Mr O’Leary characterises the grounds of appeal as being both overlapping and un-particularised. I agree with this submission. It was Mr O’Leary’s position overall that this lack of particularity, of itself, doomed the application to failure as no specific ground of jurisdictional error had been delineated.
The un-particularised and broad nature of the grounds of review present difficulties for the court in conducting its task of judicial review, particularly in determining whether the decision of the IAA is legally unreasonable. As Reeves J observed in SZNXA v Minister for Immigration & Citizenship [17] formulaic or generic grounds of review do not allow a reviewing court to assess whether the errors generally asserted were actually committed by the primary decision maker and, as such, form a basis for the dismissal of the application concerned.
[17] SZNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [20] – [21]
At hearing, the applicant was represented by Mr Ford, who prepared some further written submissions in support of his client’s application for review. These submissions are not specifically tied to the grounds of review as prepared and, with due respect to Mr Ford, are somewhat polemical in nature.
In essence, as I understand his submissions, it is his submission that the decision of the IAA can be characterised as being vitiated by legal unreasonableness. In addition, in his written submissions, Mr Ford contends as follows:
“… The IAA deliberately excluded most of the applicant’s case, but the IAA conducted the review under a reasonable apprehension of bias. The whole decision-making process was unfair and unreasonable.”
Mr O’Leary elected to approach the review on the basis that the applicant had raised un-specific grounds of review relating to the IAA decision, leading to its jurisdictional error, under the following headings:
·The Authority had taken into account irrelevant considerations;
·It had failed to assess the applicant’s claim and the country information provided to it;
·It was biased;
·It was legally unreasonable and or illogical.
I propose to take the same approach. Mr Ford’s position, expressed in strong language, in his written submissions, is that the fast track regime, inaugurated by Part 7AA is an inappropriate exercise of the legislature, which he characterises as an “absolute disgrace”.
In Minister for Immigration & Border Protection v BBS16[18] the Full Court characterised the regime under Part 7AA as being truly remarkable in nature. However, its overall legality has not been impugned by the Federal Court or any other and I have no authority to do so. This is clear from the findings of the Full Court in BMB16 to which reference has already been made.
[18] Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 at [98]
The applicant has not specified what are the considerations, utilised by the IAA, which are irrelevant to its statutory obligations, under Part 7AA and which have therefore resulted in jurisdictional error.
The jurisdictional task for the IAA is specified in section 36 of the Act. It requires it to assess whether Australia owed the applicant protective obligations because he was a refugee as defined by section 5H and therefore had a well-founded fear of persecution as defined by section 5J. Otherwise, the discretion of the IAA is unconfined.
In these circumstances, the matters to which the IAA can have regard (and by necessary implication those to which it should not have regard) must be gleaned from the subject-matter, scope and purpose of the legislation.[19]
[19] See BSJ16 v Minister for Immigration & Border Protection [2017] FCAFC 78 at [30]
In my view, all the matters identified by the IAA, in determining the protective claims of the applicant, were relevant to its jurisdictional task as specified in the Act. The applicant may disagree with some of the conclusions reached by the IAA but that does not mean its decision was based on something extraneous to its jurisdiction.
In this context, the applicant asserts that the IAA did not properly assess his claim for protection and the country information provided by him to it. It is the obligation of the IAA to consider all claims for asylum squarely raised or articulated from the material put before it or which can be said to clearly arise from that material although not expressly articulated as such. It is not required to consider claims not so raised.
Allsop J (as His Honour then was) put it this way in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs:[20]
“A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.”
[20] NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15]
In my view, the IAA considered each aspect of the claim for asylum expressly made by the applicant or which arose from the material provided by him. It considered the claim on the basis of incidents stemming from 2008 onwards, including psychological material which might explain discrepancies in dates on which incidents were said to have occurred.
The reasons themselves of the IAA are comprehensive and include a balancing of matters favourable to the applicant and not favourable to him, particularly the country information available to the IAA, which indicated an improvement in the situation for Tamils in the northern area of Sri Lanka.
In this context, the applicant asserts that the country information proffered by him is to be preferred. In addition, he does not stipulate what aspect of his case, raised either directly or impliedly, was overlooked by the Tribunal.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[21] the Full Court said as follows:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
[21] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47]
In this case, the IAA considered the situation facing the applicant over a number of years, during which it accepted that the political situation, for Tamils, in Sri Lanka, had changed. It accepted that the applicant himself had been mistreated in the past and there were likely explanations as to why he had been reticent about not raising issues regarding his past mistreatment earlier.
However, after considering all these matters, it reached the conclusion that the applicant was not likely to have any high level of profile, with the Sri Lankan authorities, which would expose him to the risk of coming to serious harm, within the terms envisaged by section 5J. In view, it cannot be said that the applicant’s various claims were not considered. Rather the IAA took a different view of them to the applicant.
The task of this court, on judicial review, is to determine whether the decision of the IAA is vitiated by jurisdictional error. As such, it is not the function of this court to decide whether the country information preferred by the IAA is correct or more reliable than that provided by the applicant.
If the court did embark upon such an exercise, it would be an exercise of merits review. In my view, the IAA was entitled to determine what weight it gave to the various pieces of country information provided by it. That was part of its function in assessing the applicant’s claim for asylum.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[22] the Full Court said as follows:
“There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
[22] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]
These comments are apposite to the current matter. The IAA was entitled to draw conclusions, as it did, from the country information available to it. It determined that the situation for Tamils in Sri Lanka, included those who returned to the country as unsuccessful asylum seekers, had improved. In so doing it was discharging the jurisdiction conferred upon it.
As previously indicated, Mr Ford’s written and oral submissions were marked by a degree of polemic flourish. He submitted as follows:
“One needs to ask the question as to why the IAA was established. Presumably the Minister wanted to have a process whereby the Applicant could have an adverse decision reviewed by an independent body de novo. That is, the review body is there to deal with the matter afresh and more importantly, to look at all of the relevant information.
If this is in fact the reason why the IAA was established, then it has failed dismally. The IAA cannot under any circumstance be undescribed as being independent. The IAA is not there to deal with matters afresh. Concepts on independence and transparency are not part of the IAA decision-making process.”
It is in the context of remarks of this type that claims of alleged ostensible bias must be examined. Mr Ford has not provided any express examples where he alleges the IAA was biased or had closed its mind to any aspects of the applicant’s case. Rather, in my view, he has used the description biased in a rhetorical manner to express his disapproval for what he believes was an unfair outcome for his client and his disapprobation of the review regime implemented by Part 7AA.
It is not sufficient to ground allegations of bias that one or even many observers disagree with the outcome of any decision making process. By its nature, decision making, in regards to all manner of human activities is controversial and, as such, liable to precipitate a strong emotional response.
The orthodox test to describe a decision maker as biased, in the context of prejudgment, is that the state of mind of the decision maker concerned
“…is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”[23]
[23] Minister for Immigration v Jia Legeng (2001) 244 CLR 427 at [72]
An assertion of bias, on the part of an administrative decision maker, is a serious one. As such, it must be supported by evidence of either actual bias or prejudgment. It is insufficient merely for a person who is aggrieved by a particular decision to assert that the decision concerned is biased or has not been properly considered.
It was the IAA’s obligation to conduct a merits view on the material before it. In conducting that task, it was required to make findings of fact, including whether it believed or did not believe various aspects of the applicant’s case and what weight it should give to the country information available to it. This was integral to its fact finding task. In this context, I respectfully adopt the comments of the Full Court in SBBA v Minister for Immigration, Multicultural & Indigenous Affairs:[24]
“In our view this is a thinly disguised attempt to have this Court take issue with the Tribunal’s assessment of the merits of the appellant’s claim. The Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards as appropriate. Even were the Tribunal to disbelieve every element of the appellant’s claim (and it did not) it would not be sufficient to establish bias. Bias or lack of good faith requires much more. It requires that the decision maker have prejudged the matter, and that he or she has a mind closed to any argument in support of a contrary conclusion.”
[24] SBBA v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCAFC 90 at [15]
In this case, in my view, the IAA carefully examined the applicant’s claims. After accepting many aspects of the applicant’s case, it reached a conclusion adverse to his application, for which it provided extensive reasons. This is not congruent with either any form of bias or that it had not considered his case appropriately.
The main thrust of the applicant’s case is that the reasoning adopted by the IAA is tainted by legal unreasonableness in the sense that it is illogical or irrational in nature. This is related to his assertion that all aspects of his case have not received attention from the decision maker.
As I understand Mr Ford’s submission this unreasonableness is based on the failure of the IAA to accept aspects of the applicant’s case arising from the photographs of his injuries; the manner in which it treated his allegation that his family, in Sri Lanka, remained under surveillance; and having accepted that he had been subject to mistreatment, in Sri Lanka, in the past, did not find that he was at risk of being subject to such treatment, in the future, in the event of being returned to that country.
Binding High Court authority indicates that it is an inherent requirement of the exercise of any power, conferred on a decision maker, such as the IAA, that such power be exercised reasonably and, if is not so exercised, it amounts to a failure of jurisdiction. To be exercised reasonably, it must be possible to glean from the relevant decision record an “an evident and intelligible justification” for the pertinent decision in question.[25]
[25] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76] per Hayne, Kiefel & Bell JJ
In Li[26] Gageler J expressed the principle as follows:
“Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.” Citations removed
[26] (supra) at [90]
Again in Li, Gageler J considered that the authority conferred on a decision-maker by statute was subject to the deeply rooted common law principle that such authority be exercised both according to law and reason. In the case, under the heading Judging Unreasonableness His Honour said as follows:
“Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”[27]
[27] (supra) at [105]
Essentially, an administrative decision maker is required to provide an intelligible and reasonable explanation as to why a particular decision has been reached – in this case whether or not the applicant was a refugee because he had a well-founded fear of persecution, if returned to Sri Lanka, on the basis that there was a real chance he might suffer serious harm there.
Following Li, the Full Court provided further analysis of the concept of legal unreasonableness in Minister for Immigration & Border Protection v Singh[28] identifying two distinct but related species of unreasonableness – one based on errors arising in the decision making process itself and the other based on what was the actual outcome of the decision making process.
[28] Minister for Immigration & Border Protection v Singh (2003) 231 FCR 437
In the first, the court, in its supervisory role on judicial review, is able to identify a jurisdictional error in how the decision maker has approached the statutory task conferred upon it. In the second, being outcome focussed, the reviewing court is satisfied that the exercise of power, by the original decision maker is arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Accordingly, it is clear from relevant Federal Court authority that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme” not merely a situation where the minds of potential decision makers might differ as to the issue in question.[29]
[29] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Firstly, the applicant asserts that it was legally unreasonable for the IAA to reach the decision, which it did, on the basis of what are characterised as minor inconsistencies in his evidence. In this context, the IAA findings can be summarised as follows:
·The applicant had been detained and mistreated in 2012, which was shortly before he decided to leave Sri Lanka;
·It further found his release was negotiated and he was not a person who, at that time, had a political profile as a LTTE sympathiser, largely because of his age;
·He claimed his family had been subject to surveillance by the CID, who had asked where he was.
The IAA found this aspect of the applicant’s evidence to be “somewhat vague and inconsistent”, although it did not reject the involvement of the CID outright. However, given earlier findings about the applicant’s degree of profile, which was influenced by country information available to it, the IAA found it was not likely the applicant was the subject of any on-going attention or would be if he returned.[30]
[30] See Case Book at page 278 – 279 [44] & [49]
I accept that the IAA’s decision did turn on findings of credit of a fairly minor nature. However, these findings were also largely subsumed by other findings, based on country information, regarding the situation currently facing young Tamil males, from the north, in Sri Lanka. It is this context that I must consider the submission regarding legal unreasonableness.
In Minister for Immigration & Citizenship v SZMDS[31] Crennan and Bell JJ said as follows in respect of how a court, conducting a judicial review of a primary decision maker’s determination is to assess whether that decision is irrational or illogical. Their Honours said as follows:
“On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. 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.”
[31] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR611 at 649 [135]
In the current matter, I consider that it cannot be said of the IAA’s decision that there was no evidence available to it to reach the conclusion that it did or more particularly that the evidence available could indicate only one logical conclusion.
On the basis of country information, the IAA was entitled to conclude as it did. In addition, in my view, the same can be said of its findings regarding the applicant’s credibility regarding the issue of CID involvement with his family.
In the context of judicial review of a primary decision maker’s assessment of credit, the reviewing court must be particularly careful not to convert its task inadvertently into one of merits review. Although it is open to a reviewing court to accept that a fact finder’s assessment of credit is illogical, it should only do so very cautiously.
Relevant Federal Court authority also makes it clear that a finding of adverse credibility, made by a decision maker, in respect of an applicant in the context of a refugee application may, in certain circumstances, also found a finding of jurisdictional error on the basis of unreasonableness.
However, for obvious reasons and as McHugh J remarked in Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [32] findings on credibility are a function of the primary decision maker “par excellence” and in this context, care needs to be taken to avoid turning judicial review into merits review.
[32] See Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]
In Minister for Immigration & Border Protection v SZUXN [33] Wigney J said as follows in respect of the issue of applying principles relating to legal unreasonableness to a primary decision maker’s finding of fact in respect of an issue of credit:
“An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error… That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.”
[33] Minister for Immigration & Border Protection v SZUXN [2016] FCA 516
In this particular case, I do not consider that the particular findings of the IAA, regarding the applicant’s credit, were critical to its overall decision not to grant the relevant protection visa. Rather, they were peripheral to it. As indicated above, the IAA accepted much of the applicant’s case. However, its decision primarily turned upon its assessment of the current situation for Tamils in Sri Lanka. In these circumstances, I do not consider that the IAA’s findings regarding credit can be characterised as being extreme in the sense of being arbitrary, capricious or outside the range of possible, acceptable outcomes.
I cannot see that any jurisdictional error can attach to how the IAA dealt with the material provided by the applicant from his psychologist. Firstly, the IAA accepted the second report pursuant to the mechanism provided by sections 473DC and 473DD on the basis that it was new information. In my view, the evidence was also considered by the IAA and in this context, it was accepted that the applicant had been subject to sexual torture at the Chettikulam Camp.
It is clear from the IAA’s decision that there were two sets of photographs relating to the injuries on the applicant’s back. The first set were before the Ministerial Delegate and were considered by the IAA. The second set were sought to be tendered to the IAA, which rejected them on the basis that they could not be considered new evidence, within the rubric provided by section 473DD.
No specific challenge is made to the Authority’s determination in respect of the application of section 473DD to the second set of photographs. In these circumstances, I can see no procedurally based level of unreasonableness in respect of this decision. More importantly, the IAA did accept that the applicant had, in the past, been subject to mistreatment in Sri Lanka.
In this context, its jurisdictional task was to assess prospective risks of the applicant being subject to similar treatment in the future, if returned to Sri Lanka. In my view, it cannot be said that there was any aspect of legal unreasonableness attached to how the IAA went about its jurisdiction task of assessing the real chance of the applicant suffering significant harm, given his characteristics of a Tamil male returned asylum seeker from the northern provinces of Sri Lanka.
Conclusions
The applicant has made un-particularised and, in my view, inchoate complaints that the IAA has failed to exercise the jurisdiction conferred upon it by not considering all aspects of his claim raised by him; by being biased against him; or overall that its decision, when read as a whole, must be considered capricious or highhanded to such an extent that it must be regarded as unjustifiable on legal grounds.
In my view, the IAA considered all the matters raised by the applicant. It is not my function to carry out a merits review of the IAA’s decision. In these circumstances, I must bear in mind the oft quoted comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang[34] as follows:
“…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.”
[34] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
In this matter, in my view, no jurisdictional error arises from the lengthy and considered decision of the IAA. In these circumstances, the application for review must be dismissed.
The Minister seeks costs. I accept that costs, as calculated by reference to the applicable schedule of the court’s rules, should follow the event. The appropriate awards of costs is an amount of $7,328.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty eight (128) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 30 August 2018
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