Eiv17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1225
•21 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EIV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1225
File number: SYG 3002 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 21 December 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority affirming decision not to grant applicant a protection visa – whether finding made by the Authority was unreasonable – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 473CA, 476, 477 Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 29 September 2023 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr A Silva (direct access) Counsel for the First Respondent: Mr T Reilly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison ORDERS
SYG 3002 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EIV17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
21 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The applicant is a Sri Lankan Tamil who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and that decision was affirmed by the Immigration Assessment Authority (Authority) on 14 September 2017. The applicant seeks judicial review of the Authority decision pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on a single ground alleging that the Authority decision is affected by jurisdictional error because it was unreasonable for the Authority to find that the applicant provided only low level support to the Tamil National Alliance (TNA) in the 2011 and 2012 elections.
For the reasons explained below, I have found that the applicant has not established that the Authority decision is affected by jurisdictional error. The judicial review application is therefore dismissed.
VISA APPLICATION AND DECISIONS
The applicant entered Australia by sea in October 2012 and is an unauthorised maritime arrival within the meaning in s 5AA of the Migration Act.
The applicant applied for a protection visa on 8 April 2016. On 24 November 2016 the applicant attended an interview with a delegate of the Minister to discuss his claims for protection (protection visa interview) and on 12 December 2016 the delegate made a decision not to grant the applicant a protection visa.
The matter was then referred to the Authority in accordance with s 473CA of the Migration Act.
On 20 March 2017 the Authority purported to affirm the delegate’s decision, but on 8 August 2017 the Federal Circuit Court made orders by consent quashing the Authority decision and remitting the matter to the Authority for redetermination according to law.
On 14 September 2017 the Authority again affirmed the delegate’s decision. It is this decision of the Authority that is the subject of this judicial review application. Given the limited issues raised by this judicial review application, it is not necessary to summarise all the claims for protection made by the applicant or the Authority’s findings in relation to each of those claims. Rather, those parts of the Authority’s reasons that are relevant to the resolution of the ground of application are set out below in the context of the discussion of the applicant’s ground.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 27 September 2017, which is within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
By way of a further amended application filed on 18 August 2023, the applicant advances the following sole ground of application:
The IAA made jurisdictional error in that it was not open, or it was unreasonable, for the IAA to find that the applicant provided low level support to the TNA in the 2011 and 2012 elections.
Particulars
(a)The IAA made this finding at CB209[21]. This finding (meaning his support was only low-level) resulted in the IAA’s overall conclusion that the applicant’s involvement does not give rise to a real chance of any harm should the applicant returned to Sri Lanka now, nor should he assist the TNA in the future. This finding was premised on two earlier findings, none of which were open to the IAA to find.
(b)The first finding in effect is made at CB 207[11], that the applicant displayed a limited knowledge of the electoral process, and the position candidate … was standing for at the Provincial council election.
(c)The second finding is made at CB208 [17] that the applicant had a low-level involvement in the TNA, which itself was based on CB207[12-13], that the applicant had a limited and basic knowledge of the TNA.
The evidence before the Court comprises the court book filed on behalf of the Minister on 21 December 2017 and two affidavits of Sylvia Nicholas Silva filed on behalf of the applicant on 14 January 2018, one annexing a copy of the applicant’s submission to the Authority and the other annexing a copy of a transcript of the applicant’s protection visa interview.
WAS THE AUTHORITY DECISION UNREASONABLE?
Relevant authorities
Counsel for the applicant spent considerable time at the hearing addressing authorities relating to challenges to credibility findings in judicial review proceedings. It is not necessary in this judgment to address each of those authorities. It is now well-accepted that credibility findings can be challenged in judicial review proceedings, and the Minister does not dispute that the Authority’s adverse credibility findings may be challenged.
In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174, the Full Court of the Federal Court (Griffiths, Perry and Bromwich JJ) summarised the relevant principles at [83]:
Many of the relevant legal principles which guide the review or a judicial review of findings concerning credibility were recently discussed by the Full Court in CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413 (CQG15) at [36]-[44] per McKerracher, Griffiths and Rangiah JJ.
They may be summarised as follows:
(a)McHugh J’s oft quoted comments in Ex parte Durairajasingham [Re The Minister for Immigration and Multicultural Affairs;Ex parte Durairajasingham (2000) 58 ALD 609; [2000] HCA 1] (which were cited by the primary judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;
(b)the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT [Minister for Immigration and Citizenship vSZRKT (2013) 212 FCR 99; [2013] FCA 317]at [77] per Robertson J);
(c)in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and
(d)without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Durairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:
(i) failure to afford procedural fairness;
(ii) reaching a finding without a logical or probative basis;
(iii)unreasonableness; and/or
(iv)other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at [20]-[21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]-[42].
The Minister submitted that the principles identified by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) regarding illogicality and irrationality are applicable to the applicant’s assertion of unreasonableness in fact finding in the present case. The applicant does not dispute the applicability of these principles. In SZMDS, Crennan and Bell JJ said at [131] and [135]:
131.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.
…
135.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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
Relevant parts of the Authority decision
The applicant challenges the Authority’s finding at [21] that it accepted that the applicant provided low level support to the TNA in the 2011 and 2012 elections. The particular aspect of this finding that the applicant challenges appears to be the Authority’s characterisation of the applicant’s involvement with the TNA as ‘low level support’.
The Authority’s reasons for reaching this finding were explained earlier in its reasons, in particular at [10]-[17]. The paragraphs most relevant to the submissions advanced by the parties in this matter are extracted below (emphasis added; footnotes omitted):
10.I have had regard to the assertion in the submission to the IAA that the applicant provided detailed evidence about his work for the TNA. I note the representative’s comments that at the [Safe Haven Enterprise visa (SHEV)] interview that the “delegate grilled him over and over persistently about this issue and it is the largest single topic of the interview” and the representative’s contention that the “delegate was determined to find fault with the applicant’s evidence about his election work as some of the questions were repeated”. I note that the applicant’s protection claims are based chiefly on this involvement. I note the delegate repeated a number of questions, in particular to clarify the applicant’s claims, however even with this opportunity to provide clarification I found parts of the applicant’s evidence to be unconvincing. As noted the applicant put forward that he may have some trouble remembering specific dates and I accept that the dates at Question 84 in the SHEV application may have been incorrect and he corrected these at his interview, but I am concerned by his inability at his interview to be clear about the periods of time he worked for the TNA in 2011 and 2012. He was asked a number of times to explain the period of time he worked for the TNA and initially stated he was not sure and that he did not remember exactly. The delegate asked him was the period weeks, or days or up to a year and the applicant responded that it may have been four to five months, and then later stated that it was sometimes two to three months. After a number of questions the delegate clarified with the applicant that he worked for four to five months twice, in 2011 and 2012.
11.At his SHEV interview the applicant displayed a limited knowledge of the electoral process and the position candidate [candidate name] was standing for at the Provincial Council election. I do not accept the assertion that questions about the position [candidate name] was standing for were “difficult and speculative” and that “even a sophisticated person wouldn’t know the answer”. The delegate asked the simple question what position was the candidate standing for in the election. The applicant claims to have been involved in canvassing for the TNA for four to five months prior to the Provincial Council election, yet in response to questions about what position was involved he responded initially that if he won [candidate name] would go on to win in other places and then that he was working for the TNA in [place] and on being asked to specifically state what position [candidate name] was standing for the applicant responded that he did not know. I would expect that someone working for a candidate’s election for a number of months would have a clearer understanding of the position the candidate was running for.
12.The applicant was able to provide basic information about the TNA, such as identifying the house symbol used by the TNA. In response to questions put to him about his involvement he was able to advise that he pasted posters, went door to door doing propaganda and assisted as a worker at public meetings. When asked to explain what he would say to people to convince them to vote for the TNA he stated he told people that by voting for the TNA they would receive improved facilities such as water and electricity.
13.Overall I consider that the applicant had a limited and basic knowledge of the TNA; he was able to respond to questions about his involvement. I am not convinced that at his interview the applicant demonstrated an in-depth level of knowledge or provided detailed evidence of his involvement as stated by the representative. However, I accept that he had some involvement with the TNA; I find that his level of knowledge is consistent with his claimed role as a supporter who obtained his instructions daily from people in the TNA office, who canvassed as part of a group of three to five other supporters and spoke to people at their door and encouraged them to vote for the TNA, and who provided logistic support at meetings and pasted posters. The applicant did not undertake any public speaking, was not a decision maker regarding policy direction or the conduct of the election campaign and had no significant role within the party or in the administration of government by TNA elected office bearers after the election. From his account he was one of many young low level helpers who were directed to undertake local support activities. As such I find it difficult to reconcile his claim to have “contributed significantly for the party’s grand victory” and “made the party victorious” and as a result been targeted by opposition members. The Danish Immigration Service reported on the Presidential and Parliamentary elections conducted in 2010 and noted that political parties on all sides sought to disrupt the campaigns of their opponents and I accept that elections in Sri Lanka have been marred by intimidation and violence. But I consider it implausible that a person working at the applicant’s level would be subject to kidnap and death threats as claimed. The applicant was one of many supporters and I do not accept as plausible his claim that the people who worked with him were all killed. Country information indicates that various parties sought to disrupt the election campaigns of their opponents with the aim of hampering the campaigns of their opponents. Country information does not support ongoing harassment of, or harm to, people with low profile political involvement. I consider it implausible that people continue to harass his family because of his involvement with the TNA four years earlier.
…
16.I am willing to accept that the applicant was involved in the 2011 local elections and the 2012 Provincial Council elections pasting posters, going door to door to canvas for votes and assisting at public meetings.
17.However, noting the low level of his involvement in the TNA, I do not accept that he was kidnapped after the 2011 election by opposition party members who were jealous of the TNA’s success in that election and his role in achieving that success. Again noting the low level of his involvement and the inconsistencies in his account I do not accept that the applicant received telephone threats in regard to the 2012 election, or that people came to his home to kill him. Noting the inconsistency between the date the applicant departed Sri Lanka and his account of events and the claimed period of hiding stated in his uncle’s letter, I do not accept that the applicant was in hiding at his uncle’s as claimed, nor that people came to his uncle’s to threaten or harm him. I do not accept that opposition party members continue to visit and harass his family and ask about the applicant.
It can be seen from the particulars of the ground that the applicant challenges two findings made by the Authority in reaching its finding that the applicant provided only low level support to the TNA. These two findings are discussed in greater detail below.
The Authority’s finding that the applicant had a limited knowledge of the election process and the position that the candidate he assisted was running for at the Provincial election
As can be seen from the extract above, the Authority found at [11] that the applicant had limited knowledge of the electoral process and the position for which the candidate he assisted was standing. The finding appears to be based on the applicant’s answers to questions that were put to him at the protection visa interview and, in explaining the finding, the Authority referred to a submission made on behalf of the applicant.
The following exchange took place between the delegate and the applicant at the protection visa interview:
[Interviewer]: … So who is the leader of the TNA?
[Applicant]: [candidate name]
[Interviewer]: So right now, who is the leader of the TNA?
[Applicant]: Now, I don’t know. I didn’t inquire about the current person, but when I was there it was [candidate name].
…
[Interviewer]: Okay. And so what was [candidate name] in charge of?
[Applicant]: He was asking for vote and he was the leader.
[Interviewer]: What level of leader was he?
[Applicant]: He was the president for that number and district and we were canvassing to – canvassing the people to work for him.
[Interviewer]: And if he had won, what position would he have?
[Applicant]: I went there as a volunteer worker, but now if I would have been there, I may work as a helper to him.
[Interviewer]: So what position was he trying to win?
[Applicant]: Tamil (indistinct)
[Interviewer]: What position was he trying to win in the election?
[Applicant]: If he wins that … district, then he will go and win in successive other places.
[Interviewer]: So what was the position he was trying to be elected to?
[Applicant]: He was working for TNA in … district in that party.
[Interviewer]: So you have been going out to tell people to vote for him so he can win the election. What does he win?
[Applicant]: I don’t know what position, but I know just this propaganda work.
[Interviewer]: Do you know any other candidates that are above him or - - -
[Applicant]: There was another person who was contesting about him in another region. He was also contesting in house symbol, but I don’t know his name.
The aspect of the applicant’s submission that the Authority considered at [11] is that:
He was repeatedly asked what position that [candidate name] would get if he wins the election and the applicant didn’t understand that question. It is a very difficult and speculative question and even a sophisticated person wouldn’t know the answer for.
The applicant made a similar submission to this Court. The applicant submitted that the question of what position the candidate was standing for was an irrational question that did not have an answer, because the candidate was not standing for any position but rather was standing to be a member of the Provincial Council. If the question was what position the candidate hoped to achieve eventually, it was, the applicant submitted, a difficult question to answer. The applicant appears to submit that because the question was difficult, the Authority misunderstood his evidence. In oral submissions, Counsel for the applicant submitted that the Authority’s summary of the applicant’s claims at [7] of its reasons showed that the applicant gave an appropriate answer to the question. The Authority summarised the applicant’s claim in the following way:
In 2012 he assisted the campaign for the TNA candidate at the Provincial Council elections, [candidate name]. His father knew the candidate. The applicant is not sure what position [candidate name] was standing for, but was aware that he stood as the TNA candidate for [place].
I do not accept the applicant’s submission that the Authority’s finding at [11] was not open to it. It was open to the Authority to consider the question of what position the candidate was standing for to be a simple question. The question, or a variation of it, was repeated by the delegate several times, apparently to ascertain the applicant’s level of knowledge about the candidate. It was also open to the Authority, based on the answers given by the applicant at the interview with the delegate, and highlighted by the Authority at [11] of its reasons, to find that the applicant had limited knowledge of the electoral process and the position the candidate was standing for, and that somebody working for the candidate for several months should have a better understanding of the position for which the candidate was standing. The finding made by the Authority, based on the evidence before it, was a finding about which reasonable minds may differ. It does not establish jurisdictional error.
The Authority’s finding that the applicant had a low level involvement in the TNA
The applicant submitted that the Authority’s finding that he had a low level involvement in the election was based on the Authority’s findings at [12] and [13] regarding the applicant’s answers to questions about his involvement in the elections and his knowledge of the TNA.
Before addressing the relevant findings in those paragraphs identified in the applicant’s submissions, I explain why some parts of the applicant’s submissions about this part of his ground do not advance his case. Some parts of the applicant’s submissions appear to be largely based on his submission to the Authority and criticise findings made by the delegate. The delegate’s decision is not reviewable by this Court: see s 476(2)(a) and 476(4)(c) of the Migration Act. Some parts of the applicant’s submissions also relate to the earlier Authority decision that was quashed on judicial review.[1] Findings made by the Authority, differently constituted, in the purported decision that was quashed do not establish jurisdictional error in the Authority decision made on 14 September 2017, which is the subject of the judicial review application presently before the Court.
[1] See, for example, [16], [33] and [34] of the applicant’s written submissions, which respectively refer to [9], [12] and [13] of the Authority’s decision dated 20 March 2017.
Insofar as the applicant’s submissions may be seen as directed to the Authority decision made on 14 September 2017, in summary:
(a)The applicant disputed the Authority’s finding at [13] that he had not demonstrated an in-depth level of knowledge or provided detail evidence of his involvement as stated by the representative. The applicant rather submitted that he provided detailed evidence of his involvement in and the work he did at the election, commensurate with somebody of his education level.
(b)The applicant disputed the Authority’s finding at [13] that, as one of many low level helpers, it was difficult to reconcile the applicant’s claim to have ‘contributed significantly for the party’s grand victory’ and ‘made the party victorious’, resulting in him being targeted by opposition members. The applicant submitted that it was irrational to suggest that somebody who had campaigned door-to-door for months and who was involved in the campaign related work would not be subject to threats from the party’s enemies and would not feel as though they had contributed significantly to the party’s grand victory.
The Authority identified some aspects of the applicant’s evidence that it found to be unconvincing, such as his inability to be clear about the periods of time he worked for the TNA in 2011 and 2012: see [10]. However, the Authority accepted that the applicant had a limited and basic knowledge of the TNA, was able to respond to questions about his involvement and had a level of knowledge consistent with his claimed role for the TNA. While the Authority rejected the applicant’s representative’s characterisation of the applicant’s evidence at his protection visa interview as displaying an in-depth knowledge and providing detailed evidence, the Authority accepted the applicant’s evidence about the tasks that he performed for the TNA.
In particular, as can be seen from the extracts above, the Authority accepted that the applicant was involved in the 2011 local elections and the 2012 Provincial Council elections by pasting posters, going door-to-door to canvass for votes and assisting at public meetings. The Authority accepted that the applicant obtained instructions daily from people at the TNA office and canvassed as a part of a group of three to five other people. The Authority expressly noted that the applicant did not undertake any public speaking, was not a decision-maker regarding policy direction or the conduct of the election campaign and had no significant role within the party.
Based on these findings, which in turn were based on an acceptance of the applicant’s evidence, it was open to the Authority to categorise the applicant’s involvement with the TNA as ‘low level’. I accept the Minister’s submission that this categorisation of the applicant’s involvement was one in relation to which reasonable minds might differ and it therefore cannot be said to be illogical or irrational.
Authority’s finding at [21]
I have rejected the allegations of unreasonableness or irrationality contained in the particulars to the applicant’s ground above. Taking into account the evidence as a whole, it was open to the Authority to reach the conclusion at [21] that the applicant had provided low level of support to the TNA in 2011 and 2012, but that this would not give rise to a real chance of harm should he return to Sri Lanka now or if he should assist the TNA in the future.
The ground advanced by the applicant does not establish jurisdictional error in the Authority decision.
CONCLUSION
Given that I have found that the applicant’s ground does not establish jurisdictional error in the Authority decision, it follows that the application for judicial review must be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 21 December 2023
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