ELC17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 579
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ELC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 579
File number: MLG 2111 of 2017 Judgment of: JUDGE FORBES Date of judgment: 12 July 2023 Catchwords: MIGRATION – judicial review – where Immigration Assessment Authority affirmed delegate’s refusal to grant safe haven enterprise visa – whether IAA constructively failed to exercise jurisdiction – whether Authority failed to consider integers of applicant’s claims – whether inconsistent findings in Authority’s reasons were illogical, irrational or legally unreasonable – whether error was material – whether Authority unreasonably failed to exercise discretion under s 473DC to get new information from applicant – whether late claim was a new claim or development of earlier claim Legislation: Migration Act 1958 (Cth), ss 5, 7, 36, 65, 473DC Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
ARG15 vMinister for Immigration and Border Protection (2016) 250 FCR 109
CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131; [2019] FCAFC 155
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107
CGA15 v Minister for Home Affairs(2019) 268 FCR 362; [2019] FCAFC 46
CQG15v Minister for Immigration and Border Protection [2016] FCAFC 146
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
DPI17 v Minister for Home Affairs [2019] FCAFC 43
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Minister for Home Affairs v DUA16 (2020) 95 ALJR 54
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Minister for Immigration and Border Protection vSabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZMTA (2019] 264 CLR 421
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) (2004) 144 FCR 1
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1
Division: Division 2 General Federal Law Number of paragraphs: 135 Date of hearing: 23 May 2022 Place: Melbourne Solicitor for the Applicant: Mylvaganam Wimaleswaran Counsel for the Applicant: Mr Stoller Solicitor for the Respondents: Mills Oakley Counsel for the Respondents: Ms Mills Table of Corrections 20 July 2023 In the coversheet the ‘Date of Hearing’ has been corrected to show ‘23 May 2022’. ORDERS
MLG 2111 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ELC17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
12 july 2023
Amended pursuant to Rule 17.05(2)(g) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 20 July 2023.
THE COURT ORDERS THAT:
1.The Decision of the Immigration Assessment Authority dated 19 September 2017 be quashed.
2.
A writ of mandamus be directed to the Immigration Assessment Authority requiring it to determine the Applicant’s application according to law. A writ of mandamus be directed to the Immigration Assessment Authority requiring it to review the decision of the delegate of the First Respondent dated 21 July 2017 according to law.3.The First Respondent pay the Applicant’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at
25 May 202223 May 2022.
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 FORBES
INTRODUCTION
This proceeding concerns an application seeking judicial review of a decision made by the Immigration Assessment Authority (‘Authority’ or ‘IAA’) dated 19 September 2017. The decision of the IAA affirmed a decision of the Minister’s delegate not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
At the hearing of the application for review, the applicant pressed four grounds. In the reasons set out below, I have found that ground 3 has been made out and reveals jurisdictional error in the decision of the Authority.
BACKGROUND
The following background is derived from the detailed outlines of submission and the court book filed by the parties prior to the hearing. Unless otherwise stated, the following matters are common ground.
The applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu religion who originates from the northern provinces of Sri Lanka. He first arrived in Australia on 13 October 2012 as an unauthorised maritime arrival.
The applicant took part in an entry interview on 16 October 2012.[1] Relevantly, during the entry interview in 2012 the applicant had stated, among other things, that he has injury marks from falling down as a child, which led to him being suspected of involvement with the LTTE[2].
[1] Court Book (‘CB’), p 2
[2] CB 11
On 10 December 2015 the Department of Immigration and Border Protection (the Department) invited the applicant to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV).[3]
[3] CB 29
On 24 January 2017 the applicant applied for the SHEV[4]. In support of his application, the applicant provided the Department with identification documents and a statutory declaration dated 24 January 2017. He was assisted by a migration agent during this process.
[4] CB 41
The applicant’s claims are set out in the statutory declaration which accompanied his SHEV application. The claims are summarised as follows[5]:
[5] CB 215 – 216
·The applicant has no political affiliations and does not belong to any group. However, some of his friends may have belonged to the Liberation Tigers of Tamil Elam (LTTE). In 2006, they were singled out by the Criminal Investigation Division (CID) and tortured before being killed.
·The applicant’s problems began in 2005. There were constant road blocks and police checks, and his movements were under constant surveillance.
·When he worshipped at a Hindu temple, he was also forced by the army to worship at a Buddhist temple.
·In 1995, the applicant’s father was detained and jailed for two and a half years on suspicion of collaborating with the LTTE. In 1999, his father was harassed by the militant group People’s Liberation Organization of Tamil Eelam (‘PLOTE’).
·In 2005, the applicant was detained for two to three hours by the security force. He was questioned about whether he was involved in the LTTE and beaten before being released.
·In 2006, his friends were killed as set out before. He was harassed by the CID in the form of threatening phone calls.
·On 26 July 2010, the applicant’s mother filed a complaint with the Sri Lankan Human Rights Commission that suspected CID officers were making enquiries about his whereabouts.
·The applicant departed Sri Lanka around September 2012.
·The applicant fears he will be detained if he returns on the basis that he is a suspected collaborator with the LTTE and may be killed. He also fears arrest because he left Sri Lanka illegally.
·He fears that he will be forced to worship at a Buddhist temple again.
The applicant also claimed that Sri Lankan authorities would not be able to assist him as they “continue to be involved in the actions against the Tamils”.[6]
[6] CB 84
Included in the statutory declaration is a sentence which states:
“Please note that this is a summary of my claims and I am happy to provide further detail at my interview.”[7]
[7] CB 83
On 12 April 2017 the Minister invited the applicant to attend an interview with the delegate. The applicant was present for the interview and was assisted by a migration agent.
Relevantly, at the interview the applicant claimed that he had been asked in 2007 to join the LTTE to fight in the war. The applicant says he refused to join the LTTE but agreed to contribute by collecting food for the LTTE members from several Muslim-owned restaurants in Vavuniya. He claimed the Muslim restaurant owners had been forced by the LTTE to provide the food. However, now that the LTTE no longer has a presence in Vavuniya, the applicant fears that the Muslim restaurant owners may have revealed his identity to PLOTE. The applicant also stated that he knows about a PLOTE member being killed in 2007. This was the first time that the applicant raised these claims.[8]
[8] CB 177
On 21 July 2017 a delegate of the Minister refused to grant the applicant’s visa.
In its decision record, the delegate found that the applicant was of no significant interest to the Sri Lankan authorities when he left the country. Additionally, in light of country information, which noted the improved situation in the north of the country, the delegate found that the chance the applicant would face harm because of any real or perceived links to the LTTE is remote, now or in the reasonably foreseeable future. The delegate also found that the applicant would not be persecuted on account of being a failed (Tamil) asylum seeker who departed Sri Lanka illegally.[9]
[9] CB 149 – 469
The matter was subsequently referred to the IAA for review on 26 July 2017 pursuant to s 473CA of the Act.
Immigration Assessment Authority
On 16 August 2017 the applicant’s representative emailed the IAA a submission (dated 15 August 2017), which in part contained legal argument and referred to country information contained in the referred material. The Authority had regard to those parts of the submission.
However, the submission also introduced what the Authority considered to be “new information”. To the extent that the applicant’s submission referred to country information not contained in the referred material or to reports dated prior to the delegate’s decision, this information was not considered by the IAA because the Authority was not satisfied that the applicant could not have provided the information to the delegate prior to his decision[10].
[10] CB 215 at [5]
Further, the IAA did not consider new information pertaining to the applicant’s father including a letter from Hillingdon Hospital dated 3 February 2015. Whilst it was prepared to accept that this information could not have been provided to the delegate prior to its decision, the Authority was not satisfied that it was credible personal information and that there are exceptional circumstances to justify considering it.[11]
[11] CB 215 at [6]
IAA’s decision on the applicant’s claims
The IAA affirmed the delegate’s decision on 19 September 2017 to refuse the visa.[12]
[12] CB 211 – 227
In its decision, the Authority first considered the risk of harm to the applicant if he returns to Sri Lanka on the basis that the authorities would impute him with a pro-LTTE or anti-Sri Lankan government political opinion[13].
[13] CB 217 at [14]
At [17] of its reasons the Authority did not accept that the applicant provided assistance to the LTTE in 2007 by obtaining food from restaurants, or that in connection with providing assistance to the LTTE the applicant held information about a PLOTE member being killed, noting that these claims had not been raised before the SHEV interview in 2017. Whilst the Authority acknowledged that the applicant was only asked to provide a summary of his claims at the entry interview, the Authority considered this claim of assisting the LTTE was significant and noted that the applicant did not raise the claim in his detailed statutory declaration[14].
[14] CB 217 at [17]
The IAA also did not accept the applicant’s explanation that this claim of assisting the LTTE had not been mentioned earlier because he was afraid. The Authority accepted that fear may have explained the applicant not mentioning the claim at the entry interview in 2012, but it did not explain his failure to mention it in his SHEV application. The Authority noted that the SHEV application was lodged four years after the entry interview and that the SHEV application form cautions that “you must provide all the details about why you are seeking protection… and you may not be given another opportunity to present these claims”.
At the conclusion of paragraph [17], after rejecting the claim of assisting the LTTE, the Authority said:
In those circumstances, I consider the applicant has fabricated his claims of arrest and detention so as to create a profile upon which to apply for protection.[15]
[15] CB 217 at [17]
Relevantly, the IAA accepted the balance of the applicant’s claims, including, inter alia, that:
(a)a PLOTE militant put a pistol to his head in 2006;
(b)he is from a LTTE controlled area;
(c)his father had been arrested in 1995 on suspicion of being a LTTE collaborator and had been detained for two and a half years;
(d)he has injury marks from a childhood accident;
(e)he was stopped by security forces and detained for two to three hours in 2005, during which time he was interrogated and beaten; and
(f)a number of his friends had been killed in 2006 on suspicion of belonging to the LTTE.
Nonetheless, at [20] the Authority considered “these incidents” to be remote in time and minor, and was not satisfied that they would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities now or in the reasonably foreseeable future[16]. Nor did the Authority accept that the applicant’s father was of ongoing interest to the authorities following his release from detention in 1997 or 1998.
[16] CB 218 at [20]
At [21] the Authority had regard to the categories of persons identified by the UNHCR as needing protection and concluded at [22] that the applicant does not fall within any of the recognised categories[17].
[17] CB 218 – 219 at [21] – [22]
At [25] of the decision record, the Authority was not satisfied that the applicant’s Tamil ethnicity, the incidents which occurred prior to 2010 and/or his residence in a former LTTE controlled area would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities. The Authority based this finding on DFAT reports and UNHCR Guidelines contained in the referred information and on the basis that “…there is no credible claim of any serious harm to the applicant for reason of his being Tamil while he lived in Sri Lanka.”
The Authority also found that:
(a)it was not satisfied that the applicant would be subjected to discrimination or economic hardship which would threaten his capacity to subsist[18];
(b)the applicant would not face serious harm as an illegal emigrant[19] and failed asylum seeker[20]; and
(c)the applicant would be able to practice his faith freely and would not be forced to worship at a Buddhist temple if he were to return to Sri Lanka and therefore would not face a real chance of serious harm due to being Hindu[21].
[18] CB 242 at [29]
[19] CB 242 – 243 at [30] – [37]
[20] CB 243 at [38] – [40]
[21] CB 243 – 244 at [41] – [42]
Accordingly, the IAA concluded that the applicant failed to meet the definition of refugee in s 5H(1) and therefore did not meet the protection criteria in s 36(2)(a).
The Authority also found that the applicant would not face a real risk of significant harm if he was removed to Sri Lanka, such that he did not meet the complementary protection criteria under s 36(2)(a)[22].
[22] CB 244 – 245 at [44] – [50]
APPLICATION FOR JUDICIAL REVIEW
On 3 October 2017, the applicant applied to this Court for judicial review of the IAA’s decision and initially identified one ground of review.
On 25 April 2022, the applicant filed a further amended application which contained five grounds for review, articulated as follows (particulars omitted):
1.The Authority failed to take into account relevant information, and/or failed to exercise its jurisdiction, by failing to consider whether to accept “new information” in accordance with the requirements of s 473DD of the Act.
2. The Authority constructively failed to exercise its jurisdiction:
2.1 by failing to consider, properly or at all, an integer of the Applicant's claim (that his injury marks mean that he is suspected of being associated with the LTTE); or
2.2 in the alternative, if the claim above is found to have, implicitly, been considered and accepted by the Authority, then its conclusion that the “incidents” are “remote in time and minor” was legally irrational, illogical or unreasonable.
3.The Authority made a finding, critical to its ultimate determination, which was illogical, irrational or otherwise unreasonable, and/or failed to properly consider an integer of the Applicant’s claims, in simultaneously accepting that the Applicant had been detained in 2005 (on the one hand) and then finding (on the other) that he had fabricated his claim to being detained “to create a profile upon which to apply for protection”.
4.The Authority acted unreasonably in the exercise of its discretion or alternatively, constructively failed to exercise its jurisdiction, in failing to exercise or failing to consider whether to exercise its discretion under s 473DC to get information from the Applicant or his representative.
5.Further and alternatively to ground 4 above, the Authority failed to exercise its jurisdiction to conduct a review of the decision of the Minister's delegate, by failing to consider a submission of substance put by the applicant in support of his contention that he had a well-founded fear of persecution in Sri Lanka.
HEARING
The application for judicial review was heard on 23 May 2022. Mr Stoller of counsel appeared for the applicant and the Minister was represented by Ms Mills of counsel.
Prior to the hearing the Minister prepared a court book and each of the parties filed a written outline of submissions[23].
[23] Outline of submissions filed by the applicant on 25 April 2022; the Minister filed an outline of submissions on 16 May 2022
At the commencement of the Hearing, Mr Stoller indicated that ground one of the applicant’s further amended application would not be pressed.
Ground 2
By this ground the applicant contends that the Authority failed to consider an integer of the applicant’s claim, namely that his injury marks mean that he is suspected of being associated with the LTTE. Alternatively the applicant says that if this integer of the claim was considered and accepted, the IAA’s conclusion that the incidents were remote in time and minor was a legally irrational, illogical or unreasonable finding.
The predicate for this ground of review was the applicant’s statement, in his entry interview, that “I have injury marks on me and so they suspect me of being LTTE”.
In its discussion under the heading “Imputed association with the LTTE”, the Authority adverted to this statement at [9] of its reasons and at [19] the Authority accepted a number of the applicant’s claims including that “the applicant has injury marks from a childhood accident".
The applicant’s complaint is that the Authority constructively failed to exercise its jurisdiction by failing to fully engage with the claimed connection between the applicant’s childhood injuries (the existence of which it accepted at [19]) and his suspected involvement or perceived links with the LTTE.
The applicant emphasises that the applicant’s claim is not simply that he suffered an injury in childhood and bears scars. Rather, in circumstances where Sri Lanka has been at civil war and where there have been many casualties and injuries, the presence of scars on a man of Tamil ethnicity might lead to the suspicion that those injuries had been inflicted as a result of active participation in the war.
The applicant contends that the Authority’s failure to make any reference to the relevance of the injury marks to the applicant’s perceived links with the LTTE means an inference should be drawn that the Authority did not consider this aspect of his claim at all. It is submitted that a constructive failure to exercise jurisdiction can arise even where the decision-maker has failed to consider part of a claim[24].
[24] Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 153[42] per Allsop J
The applicant submits that the Authority’s failure to properly grapple with the gravamen of his claim is revealed by paragraph [20] of the Authority’s reasons where, referring to paragraph [19] or earlier paragraphs, the Authority says:
“I consider these incidents to be remote in time and minor, and I am not satisfied that they would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities...”
The applicant submits that paragraph [20] cannot logically engage with the Authority’s finding at [19] that “the applicant has injury marks from a childhood accident" because that is a finding of static fact, not a finding of an incident which could be described as being remote in time and minor. The applicant submits that no proper reading of the Authority’s reasons permits an inference that the expression “incidents” in [20] includes consideration of the childhood scars and therefore the Authority cannot have properly considered the claimed connection between those injuries and the applicant being suspected of having involvement with the LTTE.
The applicant submits, in the alternative, that if the Authority did engage with the whole of the claim, it did so in a manner that was legally irrational, illogical or unreasonable. For the reasons mentioned in the foregoing paragraph, the applicant submits that jurisdictional error is exposed by the Authority’s reference at [20] to the childhood injuries as one of a number of “incidents” that are “remote in time and minor”.
Finally, the applicant submits that the error is material. The applicant submits that but for its failure to consider the claim, it would have been open to the Authority to have concluded that the applicant’s injury marks may have led him to be suspected by Sri Lankan authorities of having been associated with the LTTE and thus may have exposed him to a risk of persecution and an entitlement to protection under either the refugee criteria or complementary protection criteria.
The Minister submits that this ground of review is misconceived.
The Minister submitted that the Authority self-evidently did consider the whole of the applicant’s claim and points to [9] of the reasons which refers to the applicant’s claim, made at the entry interview, that “He also has injury marks from falling down as a child which led him to being suspected of involvement with the LTTE”. The reference to that claim is made in that part of the reasons [7]-[11] where the Authority set out the claims which were to be the subject of its consideration against the relevant refugee and complementary protection criterion.
Secondly, the Minister submits that there are contextual reasons why the Court should find that the whole of the claim was considered. The Minister submits that paragraphs [19] and [20] form part of a discussion under the heading “Imputed Association with the LTTE" and that it should be inferred that those paragraphs relate to that issue. In other words, it is submitted that the Court should infer that the Authority’s consideration of the applicant’s childhood scars was in the context of his claims related to actual or perceived association with the LTTE.
Thirdly, the Minister submits that the applicant’s reading of paragraph [20] is too narrow and that the expression ‘incidents’ is easily capable of embracing all the accepted claims in [19] including the finding that “the applicant has injury marks from a childhood accident". The “childhood accident” which caused injury marks is an incident.
Furthermore, the Minister submits that there is nothing irrational, illogical or unreasonable in the language at [20] which found that the incidents in [19] were “remote in time and minor”. The applicant’s evidence was that the injury marks arose from a single accident which occurred during his childhood, well prior to 2010. It requires no contortion of language, reason or logic to find that the accident was remote in time and/or that the injuries were minor. It is submitted that it was open to the Authority to describe the incident as such in the context of its consideration of the applicant’s claimed fear of harm due to an imputed association with the LTTE. The Minister submits that the finding was not one which no rational or logical decision-maker could arrive at on the same evidence nor was the finding clearly unjust, arbitrary, capricious or unreasonable.
Finally, the Minister refers to paragraph [25] of the reasons where the Authority concluded that it was not satisfied, relevantly, that the incidents which occurred prior to 2010 would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities. The Minister submits that the reference to “incidents" in that paragraph is again a reference to those matters referred to in paragraph [19], nearly all of which occurred prior to 2010, including the applicant’s childhood accident and injuries.
In light of the above, the Minister submits that the Authority did consider the claim and was not satisfied that the applicant’s injury marks from a childhood accident was sufficient to cause him to be a person of concern to the Sri Lankan authorities. A finding that the incident was remote in time and minor and would not lead to the applicant being suspected of involvement with the LTTE was a conclusion that could be formed by a reasonable person and it was not irrational, illogical or legally unreasonable.
Relevant Legal principles
Constructive failure to exercise jurisdiction
The first limb of ground two engages the well-established principle that a failure to consider or properly deal with an argument or integer of a visa applicant’s claim may be regarded as a constructive failure to exercise jurisdiction to review the Minister’s decision[25]. Similarly, a failure to make a finding on “… a substantial, clearly articulated argument relying upon established facts” can amount to a constructive failure to exercise jurisdiction[26].
[25] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) (2004) 144 FCR 1 at [55] per Black CJ, French and Selway JJ the Full Court
[26] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 per Gummow and Callinan JJ, Hayne J agreeing at 408
In Htun v Minister for Immigration and Multicultural Affairs (2001] 194 ALR 244 at 259 [42], Allsop J (with whom Spender J agreed) described nature of the review function as follows:
‘The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act... make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.’
Illogicality, irrationality and legal unreasonableness
The second limb of ground two seeks to impugn the Authority’s findings and/or the reasoning which led to those findings on the basis that they are illogical, irrational or legally unreasonable.
Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error. An illogical or irrational decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn[27].
[27] Minister for Immigration and Border Protection vSabharwal [2018] FCAFC 160 at [45] (Perram, Murphy and Lee JJ)
Illogicality and irrationality do not solely arise in respect of a decision maker’s ultimate conclusion or decision. Both may also arise in respect of findings or reasoning leading to the ultimate conclusion or decision, albeit the overarching question is whether the decision is affected by jurisdictional error[28].
[28] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [132] (Crennan and Bell JJ). See also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [150]-[156] (Robertson J); ARG15 vMinister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [47] (Griffiths, Perry and Bromwich JJ); CGA15 v Minister for Home Affairs(2019) 268 FCR 362; [2019] FCAFC 46 at [58]-[61] (Murphy, Mortimer and O’Callaghan JJ)
A decision might be shown to be affected by jurisdictional error if there is no logical connection between the evidence and the inferences drawn or there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion[29].
[29] MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72 at [22] (Besanko, Farrell and Thawley JJ)
However, to demonstrate jurisdictional error on the basis that the decision‑maker engaged in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds, it is not sufficient to show that the question of fact was one in respect of which reasonable minds might differ[30].
[30] Minister for Immigration and Citizenship v SZRKT (2013) FCR 99 at 137 [148] (Robertson J); [2013] FCA 317
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] Crennan and Bell JJ pointed out that “not every lapse in logic will give rise to jurisdictional error” and that a court should be slow to interfere. At [131] their Honours said of a complaint of illogicality or irrationality which was said to lie in the process of reasoning:
“[T]he 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.”
True irrationality must be shown. It is not sufficient that the court disagrees with the basis of the fact finding or associated reasoning, or even strongly or emphatically disagrees; it must be shown that the findings were not rationally open to be made[31]. A finding will not be irrational where it falls within the decision-maker’s “area of decisional freedom”[32].
[31] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [9] per Gleeson CJ and at [34]-[37] per McHugh and Gummow JJ
[32] See Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [7] (Allsop CJ)
In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at (47) Griffiths, Perry and Bromwich JJ observed that (citations omitted):
“[F]or a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or rationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the enquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”. Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact-finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT[33] at [151], the overarching question is whether the decision was affected by jurisdictional error.”
[33] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
As to the reasonableness of a decision, there is a legal presumption that the legislature intended that statutory discretionary powers be exercised reasonably[34].
[34] Li at [24]-[29] per French CJ, [63]-[68] per Hayne, Kiefel and Bell JJ and at [88]-[92] per Gageler J
Where reasons are given for the exercise of a discretionary power, the Court ordinarily looks to those reasons to assess the reasonableness of the exercise of power[35]. The decision may be reviewed against the standard of reasonableness by reference to the reasons given for a decision and also by reference to the outcome[36].
[35] Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh) at [44]-[47]
[36] Li at [68] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J
A finding of legal unreasonableness will invariably be fact dependent and requires careful evaluation of the evidence[37].
[37] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [84]; Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [42]
The evaluation of evidence and arguments requires a decision-maker to engage in what has been described by the Full Court in a number of cases as “an active intellectual process” with the “relevant matters or criteria”[38]. However, an unduly narrow focus on whether the Tribunal engaged in an “active intellectual process” risks the Court slipping into a merits review of the decision.
[38] Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [35], [46] (Griffiths, White and Bromwich JJ); CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131; [2019] FCAFC 155 at [76] (Allsop CJ, Kenny and Snaden JJ)
Consideration of Ground 2
In my view neither the principal ground nor the alternative ground of review reveal jurisdictional error by the Authority.
It is plain on the face of the published reasons that the Authority identified the relevant claim. At [9], under the subject heading “Applicant’s claims for protection”, the Authority referred to the entry interview and the applicant’s statement, among other claims, that he has injury marks from falling down as a child, which led to him being suspected of involvement with the LTTE.
After identifying each of the applicant’s claims, the Authority then proceeded to assess whether the applicant had a well-founded fear of persecution such as to meet the definition of refugee in s 5H(1) of the Act and the criteria for protection under s 36(2)(a).
Then, at paragraph [14], immediately under the heading “Imputed association with the LTTE” the Authority frames the next part of its discussion with the following statement:
“I have considered the risk of harm to the applicant if he returns to Sri Lanka on the basis that the authorities would impute him with a pro-LTTE or anti-Sri Lankan government political opinion”
The following paragraphs [15]-[26] are to be read in the context of the Authority considering that imputed association. The various claims made and rejected by the Authority should be seen to have been made or rejected in the context of that consideration.
To that end, the acceptance at [19] of the applicant’s claim that he had injury marks from a childhood accident was a factual finding necessary as part of the Authority’s consideration of his claim that those marks might give rise to a perceived association with the LTTE. In my view the finding reveals an active engagement with the relevant question throughout the reasoning process.
At [20] the Authority then turned its mind to whether the factual claims found at [19] could cause the applicant to be a person of concern to the Sri Lankan authorities now or in the reasonably foreseeable future. Implicit in that consideration is whether the applicant might be of concern to the Sri Lankan authorities because of an imputed pro-LTTE or anti-government sentiment arising from some relevant fact or circumstance. In considering that question the Tribunal found that the “incidents” referred to in the preceding paragraph were remote in time and minor and not sufficient to cause the applicant to be a person of concern.
In my view the incidents referred to in [20] should be taken to include the childhood accident from which the applicant sustained injuries and scars. I am satisfied that the Authority did not fail to consider the integers of the applicant’s claim. The applicant has failed to demonstrate jurisdictional error.
The alternative proposition advanced by the applicant is that the finding at [19] that “the applicant has injury marks from a childhood accident" was an incident which was “remote in time and minor” [20] was illogical, irrational or legally unreasonable.
I do not accept the applicant’s submission. In my view, it was not irrational, illogical or unreasonable for the Authority to describe the various facts and circumstances characterised in paragraph [19] as “claims” and in paragraph [20] as “incidents” as matters which were “remote in time and minor" and not being sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities. The various matters included the father’s arrest in 1995, harassment of the father in 1999, the applicant’s visit to the hero cemetery in 2000, the applicant being stopped and detained in 2005 and the death of friends in 2006. By his own description the applicant’s injury marks were received from an accident in his childhood and by inference the scars would be old and not identified to be of recent origin.
In my view the Authority’s conclusion that the applicant’s injury marks were remote in time and minor and not sufficient to cause the applicant to be a person of concern to the authorities was a conclusion which was open to it within the scope of its decisional freedom. The Authority’s finding does not reveal jurisdictional error.
For the reasons set out above, ground two must be dismissed.
Ground 3
By ground three, the applicant argues that there is an inconsistency in the Authority’s reasoning where on the one hand, it finds that the applicant has fabricated his claim for protection by saying he was arrested and detained but on the other hand, it accepts that detention, interrogation and beating had occurred.
In his 24 January 2017 statutory declaration, the applicant stated that, in late 2005, he had been “detained in Vavuniya for 2-3 hours by the security forces and interrogated and beaten”.
At [19] of its reasons the Authority accepted that “the [Applicant] was stopped by security forces and detained for two to three hours in 2005, during which time he was interrogated and beaten”. As described earlier, this is one of the “incidents” which the Authority found to have been “remote in time and minor”. Nonetheless the applicant submits that the applicant’s claim of having been stopped, detained, interrogated and beaten was accepted.
However, the applicant submits that this finding is completely at odds with the Authority’s findings at [17], the last sentence of which reads:
“In these circumstances, I consider that the applicant has fabricated his claims of arrest and detention so as to create a profile upon which to apply for protection.”
The applicant contends that the inconsistency in these findings reveals that the Authority engaged in irrational or illogical reasoning or that it failed to properly consider an integer of the applicant’s claims. The applicant submits that it is not logical for the Authority to simultaneously conclude on the one hand that the applicant had been detained and on the other that his claim to arrest and detention was fabricated. It is submitted that these fundamentally contradictory conclusions amount to jurisdictional error of the kind described in Minister for Immigration and Citizenship v SZMDS (see above). It is submitted in the alternative that the inconsistency in the reasons demonstrates that the Authority failed to give active and full consideration to the merits of the applicant’s claim in purporting to conduct its review.
The applicant also submits that the materiality of the error is self-evident. The applicant contends that the Authority’s finding at [17] is particularly strong, involving not just a rejection of the applicant’s claim but the additional sting of the claim having been fabricated to improve his chances of obtaining a visa. The applicant submits that the fabrication finding then carried through to the Authority’s finding at [25] that “there is no credible claim of any serious harm to the applicant for reason of his being Tamil while he lived in Sri Lanka”, findings which underpinned the conclusion that there was nothing in the applicant’s background which would lead him to be suspected or to be imputed with a LTTE association.
The applicant submits that if the error had not been made, and if the Authority had properly taken into account the arrest, interrogation and beating in 2005, there is a possibility that the Authority could have reached a different result on the review.
The Minister accepts that there is an inconsistency in the Authority’s reasons as alleged by the applicant. That concession is inevitable, as the two findings are irreconcilable.
However, the Minister submits that the error is not material, given the Authority’s finding at [25] that it was not satisfied that the applicant’s Tamil ethnicity, the incidents which occurred prior to 2010 and/or his residence in a former LTTE controlled area would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities. The Minister notes that this finding was also made having regard to the information in DFAT reports and UNHCR guidelines.
Moreover, the Minister submits that the inconsistency is likely to have arisen as a result of a drafting error because there is an obvious disconnect between the last sentence in paragraph [17] and the previous parts of the paragraph. The Minister contends that paragraph [17] is not related to the applicant’s claim of being arrested, detained and beaten at all and when read as a whole the last sentence simply does not make sense.
The Minister also submits that the Authority in any event did find that the applicant had been arrested, detained and beaten as claimed[39] and that each of the analyses conducted by the Authority as to the real risk or real chance of the applicant suffering harm were conducted on the premise that the applicant’s claim had been accepted. An example of the Authority’s conclusion at [20] that the “incidents” set out at [19], which included the applicant’s claim of having been arrested, were remote in time and minor and not sufficient to cause the applicant to be a person of concern to the authorities. The Minister says that in reaching that conclusion the Authority self-evidently accepted the premise of the claim.
[39] CB 240 at [19]
Accordingly the Minister’s submission is that the error was immaterial and did not ultimately affect the Tribunal’s decision and therefore could not have led to a different decision.
Conclusion
This ground raises the issue of whether the Authority’s error was sufficiently material so as to be jurisdictional error.
Not every error will be jurisdictional. For an error to be material, there must be realistic possibility that the decision made could have been different if the error had not occurred. The existence of a realistic possibility is a question of fact which the plaintiff bears the onus of proving[40].
[40] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; see also Minister for Immigration and Border Protection v SZMTA (2019] 264 CLR 421.
A finding as to credibility is amenable to judicial review on jurisdictional error grounds[41]. The final sentence of paragraph [17] conveys a finding that the applicant has fabricated evidence with a view to enhancing his protection claims. The finding, while seemingly out of place, is a significant one which carries an adverse credibility sting. The finding would not have been made unless the Authority for one reason or another had formed the view that the review applicant had lied about the claim.
[41] CQG15v Minister for Immigration and Border Protection [2016] FCAFC 146 at [37]
In my view the opposite finding in [19] does not fully ameliorate the materiality of the error. It may be that the Authority was in two minds about the applicant’s evidence about the claimed arrest, detention and beating and in the course of preparing its reasons unwittingly recorded inconsistent thoughts. But the finding that the applicant had fabricated a claim for the particular purpose of enhancing his claim reflects a view about the applicant’s credit which may have permeated the Authority’s reasoning process. It is not to the point that the finding may not have been referred to again in the decision or that there is no later mention of the applicant’s credit. The exposure of that strong adverse view in the reasons is sufficient in my view to give rise to the possibility that it affected the Authority’s decision-making in a material way.
The applicant relies on the last sentence of paragraph [25] to illustrate the point. There the Authority found that “…there is no credible claim of serious harm to the applicant for reason of his being Tamil while he lived in Sri Lanka”. That finding presumes either a rejection of the applicant’s claim of having been beaten or that the claimed beating was accepted but regarded as minor. The finding at [25] might have been premised on the latter, but it might have been premised on the former. The fact that the finding at [25] might have been premised on the Authority’s fabrication finding at [17] is, in my view, sufficient to give rise to the possibility that a different outcome could have been reached if that error had not been made.
In my view the Authority’s error was material and amounts to jurisdictional error. I would allow ground three. This error is a proper basis for the relief sought by the applicant.
In case I am wrong about that conclusion, I now turn to consider the remaining grounds.
Grounds 4 and 5
The applicant’s protection claims included a claim that was summarised by the Authority at [10]:
“[A]t the SHEV interview, the [applicant] stated that he was asked to join the LTTE in 2007 and fight in the war. When he refused, the [applicant] was told that he had to help them. The [applicant] helped them to obtain food by collecting it from a shop in the town. The [applicant] was told that the Muslim shop owner was threatened not to reveal the [applicant’s] identity. However, now that the LTTE is not there, the [applicant] is fearful that the Muslims may have revealed his identity to PLOTE…. The [applicant] did not raise this claim earlier due to fear.”
The delegate accepted this claim and appears to have accepted the applicant’s explanation that it was not raised before the SHEV interview due to fear.
However, the Authority did not accept that the applicant provided assistance to the LTTE in 2007. At [17] of its reasons the Authority found:
“I do not accept that the applicant provided assistance to the LTTE in 2007, or that in connection with this the applicant knows information about a PLOTE member being killed. This claim was not raised by the applicant prior to the SHEV interview. The applicant did not mention the claim of the entry interview, although I concede that the applicant was only asked to provide a summary of his claims at that interview. More importantly, the applicant did not raise the claim in his detailed statutory declaration. Given the significance of this claim, I would have expected the applicant to have raised it in his detailed written claims. I do not accept the applicant’s explanation that he did not mention the claim because he was afraid. While that might explain his failure to mention the claim at the entry interview shortly after his arrival on the boat, the SHEV application was lodged over four years later. Further, the SHEV application form states “[y]ou must provide all the details about why you are seeking protection… And you may not be given another opportunity to present these claims”. In these circumstances, I consider that the applicant has fabricated his claims of arrest and detention so as to create a profile upon which to apply for protection.”
The Authority did not interview the applicant, nor did it seek further information from him before reaching this finding, which is at odds with the delegate’s finding.
Ground four asserts that the Authority acted unreasonably by failing to consider whether to exercise its power in s 473DC to seek new information from the applicant as to why he did not include the claim about providing assistance to the LTTE in 2007 in his 24 January 2017 statutory declaration.
In the alternative, ground five asserts that the Authority failed to consider the applicant’s submission, contained in the 24 January 2017 statutory declaration, that the statutory declaration contained merely a “summary” of his claims.
The applicant submits that there are a number of reasons why the Court should find that the Authority’s failure to consider whether to invite the applicant to be interviewed or its failure to, in fact, invite the applicant to be interviewed, was legally unreasonable.
First, the applicant submits that the Authority gave no consideration to exercising the power in s 473DC to seek new information from the applicant, in the form of inviting the applicant to provide a submission or explanation as to why he did not raise this integer of his claim in his 24 January 2017 declaration. The applicant submits that the Authority’s power to get any “new information" must be exercised reasonably[42] and that, in the circumstances of this case, the unreasonable failure to consider whether to seek new information was material jurisdictional error.
[42] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; DPI17 v Minister for Home Affairs [2019] FCAFC 43
The applicant submits that the Authority’s unreasonable failure to consider whether to exercise its discretion is revealed by the following:
(a)the Authority made adverse findings against the applicant based upon the same material that the delegate found to be credible (without the benefit, enjoyed by the delegate, of having seen the applicant give evidence in support of the matter in person);
(b)the applicant was not given any notice of, or any opportunity to comment on or explain, the reason why he did not mention this integer of his claim in his 24 January 2017 statutory declaration;
(c)the 2017 statutory declaration expressly stated: “Please note this is a summary of my claims and I am happy to provide further detail at my interview”; and
(d)given that negative credibility was the basis upon which the Authority disbelieved the applicant’s claim that he had provided assistance to the LTTE in 2007, the lost opportunity to comment on or explain his reason for not mentioning this issue earlier was centrally relevant to the outcome.
The applicant submits that the Authority was in a position of “informational disadvantage”[43] on the review because without an interview it was not possible for the Authority to assess the demeanour of the applicant in the same way that the delegate had been able to do. The applicant submits in effect that an assessment of demeanour was necessary before the Authority could conclude, as it did in [17], that the applicant had fabricated some of his claims (which was not a finding made by the delegate).
[43] ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
Ground five, which is separate but related, contends that in reaching its finding at [17] the Authority did not have regard to the applicant’s submission that his statutory declaration contained only “a summary of his claims”. The applicant submits that the rejection of his claim of having assisted the LTTE in 2007 was based on the Authority’s non-acceptance of “fear” as an explanation for the matter not having been raised previously. However, the applicant submits that in so doing, the Authority should be taken to have given no consideration to the applicant’s assertion in his statutory declaration that it only contained a summary of his claims, a submission which the applicant submits was of substance.
In relation to the applicant’s statement in his statutory declaration that it only included a “summary of his claims”, the applicant says that this should have moved the Authority to either interview him or allow him to expand upon his claims in writing, particularly if there was a possibility of the Authority rejecting a claim or taking a different approach to the claim relative to the delegate.
The Minister submits that there is no substance to either ground four or five and that they should be dismissed.
The Minister submits that s 473DC(3) confers a discretion, but not a duty, on the Authority to obtain documents or information which were not before the delegate but which the Authority considers relevant. The Minister concedes that the power is subject to the usual implication that it must be exercised within the bounds of legal reasonableness[44].
[44] Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at [27]
The Minister submits that in a review under Part 7AA of the Act there is no general obligation on the Authority to get new information from an applicant nor is there any general obligation to invite an applicant to explain his or her claims[45]. In particular, it is submitted that the Authority is not required to seek new information from an applicant merely or solely because it intends to depart from findings made by a delegate. The Authority is entitled to disagree with the delegate’s evaluation of the material without informing the applicant of reservations about his case and without providing the applicant with an opportunity to respond[46].
[45] DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [72]
[46] DGZ16 at [72]-[76]
The Minister also submits that the Authority is not required to interview an applicant merely because credibility is an issue (which the Minister denies here) or because the Authority might come to a different view about credibility than did the delegate. In this case, the Minister submits that the Authority’s finding at [17] that it did not accept that the applicant provided assistance to the LTTE in 2007 was not a finding based on credibility or demeanour. Rather, the Minister says it was based on the Authority’s non-acceptance of the applicant’s explanation for not having mentioned the claims earlier due to fear.
The Minister submits that paragraph [17] must be read as a whole because that reveals the various reasons why the Authority rejected the applicant’s claim of having assisted the LTTE. First, the Authority said the claim was not raised prior to the SHEV interview. Secondly, it says that the applicant did not raise the claim at the entry interview. The Authority notes that the SHEV application was made four years after the entry interview and the Authority goes on to say that the applicant did not raise the claim in his detailed statutory declaration of 24 January 2017 which accompanied the SHEV application. The Authority also notes the significance of the claim and the expectation that it would have been raised in written claims. In terms of the content of the statutory declaration, the Authority noted that the SHEV application form had cautioned the applicant to “provide all the details about why you are seeking protection… and you may not be given another opportunity to present those claims”. The Minister submits that all of these matters are relevant to the Authority’s decision not to exercise its discretion in s 473DC.
The Minister also submitted that the applicant was on notice of concerns about the late claim, because he had been asked about it by the delegate, and he had an opportunity to comment on or explain to the Authority the reason why it had not been raised earlier. It is submitted that the applicant cannot have been denied any procedural fairness.
As to ground five, the Minister contends that the applicant’s statement in his statutory declaration that “Please note that this is a summary of my claims and I am happy to provide further detail at my interview” must be read as a whole and in proper context. The Minister submits that this statement was referable to the applicant’s then forthcoming interview with the delegate and, properly construed, should be read as meaning that the applicant was willing to provide additional details about the claims in his statutory declaration, not that he reserved the right to raise additional new claims.
Based on this construction and context, the caveat in the statutory declaration really only had work to do until the interview with the delegate. Accordingly, it was entirely open to the Authority to find that the claim of providing assistance to the LTTE in 2007 was an entirely new and significant claim, made late in time. It was not a mere development or reframing of an earlier summarised claim and it was open to the Authority to conclude, particularly in light of the caution in the SHEV application form and the fact that the applicant was represented by a migration agent, that the claim should have been raised earlier if it was of such significance.
Relevant principles
Sub-section 473DC states as follows:
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
The Minister properly concedes that the power in s 473DC is subject to the usual implication that it must be exercised within the bounds of legal reasonableness.
As to where the bounds of legal reasonableness are drawn, the language of the statute provides important context. In carrying out its functions under Part 7AA of the Act, the Authority is to pursue the objective of providing a mechanism of limited review that is efficient, quick and free of bias. Subject to s 473DC the Authority is obliged to review a FastTrack reviewable decision by considering the review material provided to it under s 473CB.
In DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551, the Full Court observed at [70] that the starting point for the court’s analysis must be the terms of Part 7AA of the Act and, subject to Part 7AA, the obligation on the Authority is to review a FastTrack reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant. There, the court held at [72] – [76] that Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. The FastTrack review regime does not require the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. The Authority is not required to inform an applicant about specific reservations about the applicant’s case and it is open to the Authority to disagree with the delegate’s evaluation of the material without providing to the applicant an opportunity to respond.
There may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC, but they will be limited. For example, in Minister for Immigration and Border Protection v CRY16 [2017] FCA 210 legal unreasonableness was found where the Authority affirmed a decision of the delegate but on a different basis which the delegate had not addressed. In that case the Full Court concluded that a failure to consider the exercise of the discretion in s 473DC lacked an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the applicant was likely to have, certain information which was central to a dispositive question.
Although reasonableness is closely linked to procedural fairness[47], it is important to consider the exercise or non-exercise of the discretion in s 473DC through the lens of legal unreasonableness rather than the principles of procedural fairness.
[47] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [92] per Gageler
The applicant bears the onus of establishing jurisdictional error[48].
[48] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 616 [67], 623 [91]–[92]; MZAPC at [39]
Consideration
In my view the Authority’s non-acceptance of the applicant’s claim to have assisted the LTTE in 2007 in the circumstances described by him, was not the product of any jurisdictional error.
I accept the Minister’s submission that the reasons for that finding are adequately contained within paragraph [17] of the Authority’s reasons. It is common ground that the relevant claim was not raised at the entry interview - and the Authority correctly recognises that the applicant was only asked to provide a summary of his claims at that interview. It is also clear that the applicant did not raise the claim in his statutory declaration which was filed with his SHEV application. The Authority was entitled to observe that the applicant was cautioned at the time of making his SHEV application about the importance of providing all the details about his claims for protection. The Authority was entitled to weigh the fact that the SHEV application was made four years after his arrival by boat.
As stated earlier, the FastTrack review regime under part 7AA of the Act is directed to a limited review that is efficient, quick and free of bias. It does not require the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. The Authority is not required to inform an applicant about specific reservations about the applicant’s case and it is open to the Authority to disagree with the delegate’s evaluation of the material without providing to the applicant an opportunity to respond.
I do not accept the applicant’s submission that the Authority was obliged to seek out further information before rejecting his claim or that it failed to consider exercising its discretion to do so. In any event, there is no evidence to satisfy the Court that the applicant did not consider its discretion. The finding made by the Authority was entirely open on the material before it. The fact that it departed from the delegate’s finding does not expose it as illogical, irrational or otherwise unreasonable.
Nor do I accept that the rejection of the applicant’s claim of assisting the LTTE was based solely or even substantially on credit, notwithstanding the perplexing final sentence in paragraph [17] of the reasons. Having regard to that last sentence, it is not surprising for the applicant to suspect that the Authority’s decision-making as a whole may have been infused with a negative view about his credit. However, I am satisfied that when read fairly and in context, the rejection of the relevant claim was based on its lateness. I see no reason why the Authority was required to seek further information under s 473DC.
Finally, I do not accept the applicant’s submission that the Authority was required to give consideration to the caveat in the applicant’s statutory declaration to the effect that it only contained a “summary" of his claims. In my view, the Minister was correct to contextualise that statement as an expression of the applicant’s willingness to provide further information about his stated claims to the delegate at the SHEV interview. In no sense should that statement be construed as an ongoing reservation of rights to raise new claims.
For the reasons stated above, neither grounds four nor five reveal jurisdictional error.
DISPOSITION
For the reasons set out above, I am satisfied that the error described in ground three of the application has been established. That error was material and accordingly the decision of the Authority is affected by jurisdictional error.
The applicant is entitled to the relief set out in the further amended application filed on 29 April 2022.
The Court will order that the decision of the Authority made on 19 September 2017 be quashed. The Court will issue a writ of mandamus directed to the Authority, requiring a differently constituted Authority, to determine the applicant’s application according to law.
The Minister should pay the costs of the application.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 12 July 2023
30
0