EVI17 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1052
•21 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EVI17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1052
File number: MLG 2355 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 21 October 2024 Catchwords: MIGRATION – protection visa - judicial review of a decision of the Immigration Assessment Authority – whether aspects of reasoning legally unreasonable, illogical or irrational because they involved the making of unwarranted assumptions - whether Authority unreasonably failed to exercise or consider the exercise of s 473DC(1) of the Migration Act 1958 (Cth) to get information from the applicant concerning claims introduced during SHEV interview – where materiality put in issue – finding of jurisdictional error – writs issued Legislation: Migration Act 1958 (Cth), ss 473CA, 473DC Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
DFW16 v Minister for Immigration and Border Protection [2018] FCA 746
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
DPI17 v Minister for Home Affairs (2019) 366 ALR 665; [2019] FCAFC 43
FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration and Border Protection v MZAIV [2016] FCA 251
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
WZAQU v Minister for Immigration and Citizenship (2013) 233 FCR 534; [2013] FCA 327
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of last submissions: 8 October 2024 Date of hearing: 8 October 2024 Place: Melbourne Counsel for the Applicant: Mr W Phillips Solicitor for the Applicant: Wimal & Associates Solicitor Advocate for the First Respondent: Mr R O’Shannessy Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: Submitting an appearance, save as to costs
Table of Corrections 22 October 2024 In Order 3 the text “second respondent requiring it to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth)” has been corrected to “Administrative Review Tribunal requiring it to reconsider and determine the matter according to law”. In paragraph 84 the second reference to “Authority” has been corrected to “Administrative Review Tribunal”. ORDERS
MLG 2355 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EVI17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
21 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.A writ of certiorari issue to quash the decision made by the second respondent on 12 October 2017.
3.A writ of mandamus issue directed to the
second respondent requiring it to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth)Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.4.The first respondent pay the applicant’s costs as agreed or in default of agreement, in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
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 SYMONS:
INTRODUCTION
By an amended application filed on 18 July 2024, the applicant seeks review of a decision of the second respondent (Authority) made on 12 October 2017 affirming a decision of the first respondent (Minister) not to grant him a Safe Haven Enterprise Visa (SHEV) (visa). The Authority entered a submitting appearance save as to costs and as a result, did not participate in the proceedings.
BACKGROUND
The applicant is a citizen of Sri Lanka (Court Book (CB) 3) who arrived in Australia on 10 September 2012 (CB 125) as an unauthorised maritime arrival.
In or around November 2013, the applicant first applied for a SHEV, though this application was deemed to be invalid due to the bar under s 46A(1) of the Migration Act1958 (Cth) (the Act) preventing people who had arrived in Australia unlawfully from applying for a visa while in Australia (CB 16-17).
The applicant was invited to apply for a Temporary Protection (subclass 785) visa or a SHEV on 13 October 2015 (CB 16-22) as a result of the Minister having exercised his power under s 46A(2) to “lift the bar”. On 10 July 2016, the applicant made a valid application for the visa, with the assistance of a Community Legal Centre (CB 23-100).
The applicant’s claims for protection were set out in a statutory declaration dated 4 November 2013 accompanying his invalid SHEV application (first SHEV statement) and clarified by a further statutory declaration dated 10 July 2016 (second SHEV statement). They can be summarised as follows (CB 66-72):
·The applicant is a Sri Lankan citizen of Tamil ethnicity.
·In 2006, he went into hiding because he feared being shot by the Sri Lankan army due to his Tamil ethnicity.
·In 2008, his brother-in-law, P, was injured in a bombing by the Sri Lankan army, and suffered an injury which left him unable to walk without crutches.
·In 2009, his brother-in-law, J, was abducted. The applicant was not certain who abducted J. He has not heard from J since his abduction at the end of 2009. J had been residing in Switzerland and was visiting Sri Lanka when he was abducted.
·In 2009, the applicant made two separate complaints to the Sri Lankan Police regarding J’s disappearance.
·According to the first SHEV statement, the applicant made a complaint to Red Cross regarding J’s disappearance. In the second SHEV statement, the applicant amended this claim, noting that it was his other brother-in-law who made the complaint to Red Cross.
·The CID attended the applicant’s house in Kuathanai in 2011 and asked his wife “who made the complaint” regarding J. His wife informed him that the CID had requested that he attend their office for questioning about the complaint, but the applicant did not go for fear of being abducted.
·Other Tamil people, mostly Tamil men, continued to be abducted during this period.
·In or around May or June 2012, the CID attended the applicant’s house again whilst he was out and told his wife that he should report to their offices for questioning. Following this incident, the applicant feared for his life and decided to depart Sri Lanka.
·In the second SHEV statement, the applicant clarified that the CID attended his house a total of three times prior to his departing Sri Lanka.
·After he departed Sri Lanka, the CID again attended the applicant’s house looking for him. His wife informed the CID that he had departed Sri Lanka for Australia.
·The applicants apprehends that the CID believe he supported the LTTE because he was from the Jaffna District in the Northern Province, where there was strong support for the LTTE.
·The applicant does not believe he could safely live anywhere in Sri Lanka, as all parts of the country are controlled by the Sri Lankan Army (SLA) and Sri Lankan Government. He could not relocate within Sri Lanka as it is difficult to obtain employment as a Tamil, and because he has a large family, and due to his complaint concerning J’s disappearance.
The applicant’s application for the visa was accompanied by documents including a letter from Sri Lankan “Police Headquarters” regarding the applicant’s brother-in-law, J, stating that “[J], date of birth [##/##/##] (NIC No. ##). Was Missed on 2008-11-15, at Colombo. He is an wanted person to Sri Lanka Police. The police worn to the family when he came home handover to the police station” (CB 80) (police report). The police report bore the date 25 November 2008.
On 28 November 2016, the applicant was invited by a delegate of the Minister to attend a visa interview on 16 December 2016 (SHEV interview) (CB 112-114), which he attended (CB 112).
On 30 December 2016, the delegate made a decision not to grant the applicant the visa (CB 122-124).
On 17 January 2017, the decision of the delegate was referred to the Authority for review (CB 138-147).
On 12 October 2017, the Authority affirmed the decision of the delegate and produced a written statement of decision and reasons (Reasons) (CB 148-162).
DECISION OF THE AUTHORITY
The Authority identified the applicant’s claims as involving the central narrative that he feared harm from the Sri Lankan Police and the CID based on his Tamil ethnicity, and because he had made a complaint to the Sri Lankan police concerning the disappearance of his brother-in-law, J.
The Authority accepted that the applicant was a person of Tamil ethnicity and Hindu faith, hailing from Kudathanai in the Jaffna district of the Northern Province of Sri Lanka (Reasons, [7]).
The Authority found that, based on the documents which the applicant had provided in his visa application, the applicant’s brother-in-law, J, had been abducted in 2008, rather than in 2009 as the applicant had claimed. However, based on the Authority’s finding that the applicant was a “generally credible witness”, the Authority was prepared to accept that this discrepancy was a simple error in recalling the date and the Authority placed no particular significance on it (Reasons, [11]).
The Authority then, at [12] recorded the following:
12. It follows from my finding above that I do not accept that the applicant twice reported J’s abduction in 2009 to the Sri Lanka police station in Point Pedro. Given my findings about his credibility, I have considered whether there may be some truth to his claims to have reported J’s disappearance albeit in 2008 rather than 2009. He said in his SHEV interview that he reported it because his wife’s family didn’t make a complaint about it. However, given his evidence that his wife has four other brothers, I consider this unlikely. Leaving that issue aside, I place weight on the police report which indicates that J was wanted by the police and the police were aware that J had gone missing. I do not consider it plausible that the applicant would report J’s disappearance to the police when it is clear the police were aware J was missing and the family had been warned to hand J over to the police. I am not satisfied that the applicant made two visits to the police in Point Pedro to report J missing in either 2008 or 2009.
The Authority did not accept that the applicant made a complaint to Red Cross regarding J’s disappearance (Reasons, 13).
At Reasons [14]-[16] the Authority recorded the following:
14. The applicant stated for the first time in his SHEV interview that after he made the complaint to the police about J’s disappearance they came and asked him questions in 2009 and 2010. He also claimed that between 2010 and 2012 he was in hiding, moving between relatives and friends and that whenever they came looking for him, he’d hear their motorcycle and would go into hiding. These claims were not made in either of his previous statements in which he claimed there were only three visits from the CID in June 2010, in 2011, and around May or June 2012 and on each occasion he was not at home so the CID spoke only to his wife.
15. Given the changes from his written claims and the generally vague nature of his evidence at interview about what happened after 2009, I do not accept that the applicant was in hiding between 2010 and 2012. Nor do I accept that he was questioned twice by the CID in 2009 and 2010 about J’s disappearance or for any other reason. He has not previously claimed that the authorities questioned him but said in both previous written statements that he was not at home on the three occasions when the CID came to visit. I reject these claims as a later embellishment designed to enhance his protection claims.
16. I am prepared to accept that there may have been three visits to his home by the authorities in 2010, 2011 and 2012 and that he wasn’t there on each occasion. However, I do not accept that the CID asked his wife who had made the complaint, that they told her that when he returned home he should go to their offices or that these visits indicate any particular interest in the applicant. Firstly, I have rejected his claim that he made complaints to the police about J’s disappearance. Secondly, I do not consider it credible that if, as he claims, the applicant was a person of interest, the CID would not have taken follow up action against him given their extensive powers under the Prevention of Terrorism Act (PTA). However, nothing more ever happened to him notwithstanding that he did not attend at the CID offices as he claims he was required to do. Country information confirms that during the war, LTTE support was frequently imputed on the basis of ethnicity. Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces under the Rajapaksa government. Given the timing of the visits, the fact that they happened well after J’s disappearance, and that nothing further ever happened to the applicant I am not satisfied that these visits had anything to do with J or that they indicate any particular, ongoing interest in the applicant. While I accept the three visits occurred, I find they were attributable to the routine monitoring of the Tamil population to which many Tamils were subject. For the same reasons, I accept that there was another visit to his home by the CID after he left Sri Lanka when his wife told the CID he had gone to Australia but again, I find this to be an instance of routine monitoring rather than an indication of particular interest by the CID in the applicant for any reason.
In the balance of the Reasons, the Authority recorded findings including that the applicant would not: (i) be imputed with an LTTE association on return to Sri Lanka (Reasons, [17]); would not face a real chance of serious harm or significant harm on return to Sri Lanka on the basis of his Tamil ethnicity, his gender, his origins in an LTTE controlled area, his association with his brother-in-law, or his imputed political opinion (Reasons, [20], [33]); (iii) be at risk of serious or significant harm on the basis that he is a returning asylum seeker or an illegal departee (Reasons, [28], [35]).
These findings are not directly impugned in this proceeding, except to the extent that the applicant contends that they bear on or expose the materiality of the alleged errors made by the Authority.
JUDICIAL REVIEW
The hearing of the applicant’s application for judicial review took place on 8 October 2024 on which occasion the applicant was represented by Mr Phillips of counsel and the Minister by solicitor advocate, Mr O’Shannessy.
The applicant relied on his written submissions filed on 23 July 2024 which were augmented by oral argument. The Minister relied on his written submissions filed on 6 August 2024 as well as submissions made orally.
GROUND ONE
Applicant’s submissions
The full text of ground one is set out in Annexure A to this judgment. It comprises two components, both of which involve allegations of legal unreasonableness and/or illogicality and irrationality.
Ground 1A
The first sub-ground operates on the reasoning of the Authority at [12] (reproduced at [14] above) which the applicant submits should be understood to expose two reasons for the Authority’s rejection of the applicant’s claim to have reported the abduction of his brother-in-law to the police. The applicant challenges both sets of reasons.
The first reason given was that “[the applicant] said in his SHEV interview that he reported it [the abduction] because his wife’s family didn’t make a complaint about it. However, given his evidence that his wife has four other brothers, I consider this unlikely”.
The applicant submits that this reasoning is predicated on an assumption that at least one of the applicant’s wife’s brothers was ready and willing to report the brother-in-law J’s disappearance (complaint assumption). On the evidence before the Authority, there was nothing to support the complaint assumption.
In aid of this submission, the applicant read (without objection) the affidavit of Mylvaganam Wimaleswaran affirmed 23 July 2024 which annexed a transcript of the SHEV interview. The transcript bears out that nothing was said by the applicant that might shed light on the capacity or willingness of the remaining brothers to report the disappearance of J. Instead, the relevant exchange concerning the brother-in-law (appearing at T21) records:
Facilitator: Did you know your brother-in-law?
Interviewee: I’ve seen a photo of him but I don’t know him.
Facilitator: So you never met the brother-in-law?
Interviewee: No.
Facilitator: Did you know what job he used to do?
Interviewee: When he was in Sri Lanka, he was doing the fishing.
Facilitator: But you never worked with him?
Interviewee: No, that’s right.
Facilitator: You have brothers?
Interviewee: Four [unclear], four brothers and four sisters.
Facilitator: Okay. Your wife has got brothers?
Interviewee: Four boys, three girls.
Facilitator: So the wife has got four boys, four siblings?
Interviewee: Five.
Facilitator: Five boys. So the wife has got five brothers? Five brothers.
Interviewee: And three girls.
Facilitator: Are they still living all in Sri Lanka?
Interviewee: Yes.
Facilitator:So why were you involved if she’s got family members? Why did you report them missing?
Interviewee: They used to talk about it on the phone, then because they did not make an attempt, so I went to make a complaint about it.
The applicant submits that by making the complaint assumption, the Authority engaged in reasoning that was unreasonable, illogical or irrational in the sense that there was no logical connection between the evidence and the inference that it drew and as explained by Perram J in BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [7]. The applicant submits that the reasoning of the Authority is all the more remarkable because it found the applicant to be otherwise “generally credible” (Reasons, [11]).
The second reason given by the Authority for rejecting the applicant’s claim to have reported the disappearance of the brother-in-law was that “I place weight on the police report which indicates that J was wanted by the police and the police were aware that J had gone missing. I do not consider it plausible that the applicant would report J’s disappearance to the police when it is clear the police were aware J was missing and the family had been warned to hand J over to the police” (Reasons, [12]).
The applicant submits that the text of the police report (reproduced at [6] above) does not provide a foundation for an inference that either the police knew that the applicant’s brother-in-law was missing, or that the family had been warned to hand him over to the police at any time before the applicant claimed to have reported his disappearance to the police.
The applicant submits that the statement in the police report that he “was missed on 2008-11-15, at Colombo” is ambiguous, in that it is equally consistent with the police being unable to find the brother-in-law when they attempted to locate him on 15 November 2008, someone else reporting to the police on 25 November 2008 that the brother-in-law had been missing from 15 November 2008, or the applicant reporting to the police on 25 November 2008 that 15 November 2008 was the last time that the brother-in-law was seen.
The applicant submits, in effect, that it was incumbent on the Authority to interrogate each of the possible interpretations of the police report before it seized on the interpretation that provided the basis for its rejection of the applicant’s claim and in circumstances where the logical inference to be drawn from the police report was that the applicant had supplied the details which it described. This conclusion was said to follow from the following contextual matters:
(a)the police report notes that the brother-in-law “was missed…at Colombo”, which is consistent with the applicant’s statement in his second statutory declaration that the brother-in-law “was abducted in Colombo” (CB 70); and
(b)
the police report is dated 25 November 2008 and refers to the brother-in-law being “missed on 2008-11-15”, which is consistent with the applicant’s statement in his first statutory declaration that the brother-in-law went missing, and he reported his disappearance to the police “[t]owards the end of 2009
(CB 67 [10]-[11]), noting that the Authority accepted that the applicant’s reference to 2009 rather than 2008 was “a simple error in recalling the date” (Reasons, [11]).
(c)the police report states that “[t]he police worn (sic) the family” to hand the brother-in-law over to the police. Assuming that the author intended to use the word “warn” rather than “worn”, this statement is framed in the present tense. As such it does not provide any foundation for an inference that, prior to the police report being written on 25 November 2008, and prior to any report made by the applicant to the police, “the family” had been told that they should hand the brother-in-law over to the police.
More fundamentally, the applicant submits that the process of reasoning adopted by the Authority presupposed that the applicant was aware of the extent of the knowledge possessed at relevant times by the police about the disappearance of the brother-in-law and that the police had warned the family of the brother-in-law that he was wanted.
Ground 1B
By this sub-ground the applicant challenges the finding recorded by the Authority at Reasons, [16] that the three visits made by the CID to the applicant’s home before he left Sri Lanka and the one visit after he left, were “attributable to the routine monitoring of the Tamil population to which many Tamils were subject”. The finding reflected three concerns identified by the Authority being “the timing of the visits, the fact that they happened well after [the brother-in-law’s] disappearance, and that nothing further ever happened to the applicant”. The applicant submits that each of these three reasons was affected by unreasonableness, illogicality or irrationality.
As far as the timing of the visits is concerned, the applicant submits it to be unclear what the Authority meant by the “timing” of the CID visits but surmises this to be a reference to the fact that they occurred some months or up to a year apart, in 2010, 2011 and 2012.
The applicant submits that the interval of time between visits does not rationally support a conclusion that the visits were solely for the purpose of routine monitoring. The applicant submits that the longer intervals between visits was consistent with the applicant’s claim that he had made serious allegations against the CID and the SLA, which the CID had an interest in exploring and stifling, but which did not pose an existential threat to the regime.
As far as the second reason is concerned, the applicant submits that the Authority approached the temporal relationship between the disappearance of the brother-in-law and the first CID visit on an erroneous basis. The applicant submits that having accepted earlier in the Reasons that the disappearance occurred in 2008 rather than 2009 and that the applicant had made a “simple error” in recalling the later date, that it was unreasonable, illogical or irrational for the Authority to “hold the applicant strictly” to the other dates given in his two statutory declarations about events surrounding the disappearance of the brother-in-law given the connection between the disappearance, the applicant’s reports about that disappearance to the police, and the visits by the CID. Had the Authority transposed these dates, the gap between the disappearance and the first CID visit (this would have become 2009, rather than 2010) would have reduced and eliminated the basis for the adverse inference drawn by the Authority.
As far as the third reason is concerned, the applicant submits that the fact that nothing further ever happened to the applicant at the hands of the CID does not demonstrate that they had no interest in him. This was because, on the applicant’s own evidence (which was accepted by the Authority), he was not at home during the three CID visits (Reasons, [16]). Furthermore, the applicant had claimed in the SHEV interview that he had gone into hiding between 2010 and 2012 (T19-20 and Reasons, [14]). The applicant submits it was not surprising therefore that nothing ever happened to him at the hands of the CID given that he had been able to “evade their clutches”.
Minister’s submissions
Ground 1A
The Minister accepts that an unwarranted assumption not based in evidence may result in a conclusion that a finding of fact is illogical, irrational or not founded in any evidence but submits that a party relying upon an unwarranted assumption to establish jurisdictional error would need to establish that the assumption was not one which a reasonable decision maker could make (BOH17 at [8]) applying the standard identified by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135].
The Minister submits that the Authority rejected the applicant’s claim to have reported the disappearance of his brother-in-law in 2009 for three reasons. The first reason (not impugned by the applicant) being that the Authority found that the disappearance had occurred in 2008 (not 2009) (see Reasons, [12]).
As far as the second and third reasons are concerned the Minister submits that neither involved impermissible reasoning.
According to the Minister, the reasoning that relates to the brother-in-law having four brothers is best understood as reflecting the Authority’s assessment of the evidence given by the applicant at the SHEV interview (reproduced at [25] above).
The Minister submits that evidently the Authority thought it “unlikely” that the applicant would be motivated to report his brother-in-law’s disappearance by the failure of the wife’s other brothers to do so and in circumstances where his evidence was that he did not know the brother-in-law and that this reasoning did not rely on an assumption that one or more of the other brothers was “ready and willing” to report the disappearance. Alternatively, even if the reasoning was premised on the making of an assumption of this kind, it fell well short of the “high bar” established for a finding of legal unreasonableness.
The Minister submits that the inference drawn by the Authority from the police report was plainly open on the face of the document. From that inference, the Authority reasoned that it was implausible that the applicant would report the disappearance to the police, when it was clear to the police that the applicant’s brother-in-law was missing, and the family had been warned to hand him over to the police. According to the Minister, the logic of the reasoning was clear: why would the applicant report something to the police, that is already known to the police?
The Minister submits that the applicant’s contention that the police report contained information provided by him on 25 November 2008 and that this was the “most available” inference, faces several difficulties, including:
(a)the absence of any conceivable reason why the applicant would report to police that his brother-in-law is a “wanted person” by police; and
(b)the applicant’s evidence at the SHEV interview, that the police did not give him any documents (“paper”) upon reporting the disappearance (T18).
Ground 1B
The Minister submits that none of the complaints directed at the reasoning of the Authority for finding that the applicant was subject to routine monitoring withstand scrutiny.
As far as the “timing of visits” is concerned, plainly the Authority considered that if the Sri Lankan authorities had any particular interest in the applicant, they would do more than come to his house once a year (2010, 2011 and 2012).
As far as the alleged failure by the Authority to “correct” the evidence of the applicant about the dates of CID visits, the Minister submits that there was no basis for the Authority to engage in this exercise when the only relevant date would have been the date of the applicant’s police report (rather than the disappearance) which the Authority found had not occurred and where there was no contradictory evidence about the date of CID visits and the Authority had generally believed the applicant.
Finally, the Minister submits that it was not unreasonable, illogical or irrational for the Authority to draw adverse inferences from the fact that “nothing further ever happened to the applicant” in circumstances where (this being reflected in Reasons, [16]) the applicant’s own evidence was that on each occasion the CID visited his wife and asked where he was, the CID told him to report to their office but the applicant never did with no consequence apart from a repetition of the CID visit the following year. The Minister submits that this is significant given the extensive anti-terrorism powers given to the CID under the Prevention of Terrorism Act. The Minister submits that there was no evidence by the applicant of evading behaviour and his absence at the time of visits was more consistent with him having gone fishing.
CONSIDERATION OF GROUND ONE
Ground 1A
I am persuaded that both sets of reasoning impugned by the applicant under this ground are liable to be set aside because, in both cases, they involved legal unreasonableness, illogicality and/or irrationality.
Turning first to the reasoning that involved the fact that the applicant’s wife had four brothers, I accept that a plain reading of the language used by the Authority reveals that it rejected the applicant’s reason for making a report about the abduction (because the family of the brother-in-law didn’t make a complaint themselves) solely on the basis that “the wife has four other brothers” and that implicit in this reasoning was an assumption that at least one of these brothers would have taken it upon themselves to make such a complaint.
There was no evidence to this effect before the Authority and I do not accept the submission of the Minister (made in the alternative) that despite the lack of probative evidence on the point, it was a finding (or set of reasoning) that failed to achieve the threshold of unreasonableness. There was simply nothing in the evidence to sustain the complaint assumption and the assumption was critical to the line of reasoning deployed by the Authority.
As far as the Minister invites the Court to interpret the reasoning of the Authority having regard to the transcript of the SHEV interview, the difficulty is two-fold. The first is that there is no symmetry between the postulated underlying reason – directed at the motivation of the applicant to make a report when the applicant did not know the brother-in-law – and the actual words used by the Authority at Reasons, [12], which have a different focus.
The second is that the authorities caution against recourse to transcript as a means of construing reasons of administrative decision-makers, including because there is the distinct possibility that thoughts communicated at hearing (or in this case, interview) will be abandoned by the time that a statement of reasons is being prepared.[1] In this case, where the SHEV interview was conducted by a different decision-maker, there is a further disconnect between the matters communicated in that forum and the final analysis.
[1] Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 at [33] per Mortimer J (as her Honour then was) referring to the observations of Flick J in WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 at [30].
The second set of reasoning given for the rejection of the applicant’s claim to have reported the disappearance of his brother-in-law directed attention to the police report and what reasonably could be inferred from its content.
In this respect, I accept (as does the applicant) that the police report was capable, textually, of conveying more than one meaning, including that somebody other than the applicant had made a report of the brother-in-law's disappearance. Further, while the applicant submits that the inference that he supplied the information recorded in the police report was the inference that was “most available”, I consider that applying labels of this kind, or seeking to elevate the status of an inference, is ultimately unhelpful when the error of legal unreasonableness is engaged only when a pathway of reasoning is not rationally available.
I accept therefore that it was open to the Tribunal to infer from the police report that the police had learnt otherwise than through the applicant about the disappearance of the brother-in-law and had issued a warning to the family about his return at around the same time. It was not incumbent on the Tribunal to explore and/or expose any other inferences available on the face of the police record or to provide reasons for their rejection.
That, however, is not the end of the matter. The reasoning of the Tribunal was capable rationally of supporting a conclusion of implausibility only if the applicant was seized, at the relevant time, of the knowledge that the police were already aware of the brother-in-law's disappearance and, to a lesser extent, that his family had been warned to hand the brother-in-law over to police. There was no evidence to this effect before the Tribunal. I find therefore that there was no logical connection between the evidence and the inferences and conclusion drawn by the Tribunal.
Materiality
The applicant submitted that any error in the reasoning impugned by ground 1A was material. This was because, central to the applicant’s claim for protection was his claim that he was a person of interest to the CID and that integral to this claim was the claim that the CID developed an interest in the applicant after he had made two complaints about the (CID-related) disappearance of his brother-in-law. It followed (according to the applicant) that had the Authority not adopted the impugned reasoning, it might have accepted that the applicant had reported his brother-in-law’s disappearance to the police which in turn might have led the Authority to accept that the applicant was a person of interest to the CID and had made visits to his home because of this. Had these findings been made, the Authority might have concluded that the applicant had a profile that would have brought him to the attention of authorities upon return to Sri Lanka and thereby engaged protection obligations.
The Minister accepted that an error in either of the sets of reasons challenged in ground 1A would infect the Authority’s finding that the applicant had not reported his brother-in-law’s disappearance to police. However, the Minister submitted that any error, viewed in light of the Authority’s subsequent reasoning, would not be material.
The Minister submitted that in circumstances where at Reasons [16] the Authority had found that the applicant was not a person of interest to the CID because it had characterised the visits of the CID as routine monitoring rather than reflecting a particular enmity towards the applicant, any error in the earlier finding that the applicant had not reported the disappearance of the brother-in-law did not have dispositive significance. Although it was also referred to at [16], the “substantial reasoning” was about the nature of the follow up visits.
I do not accept this analysis.
The reasoning at [16] reveals that the Authority identified two reasons for its conclusion that the applicant was not a person of interest to the CID. The first was its rejection of the applicant’s claim to have made complaints to the police and the second its finding that the CID did not take any follow up action against the applicant (part of this reasoning led the Authority to characterise the CID visits as routine). There is no textual basis to elevate one reason over the other. They both contributed to the finding about the applicant’ profile, which finding was integral to the success or failure of the applicant’s review.
I am therefore satisfied that had the Authority not made the errors earlier identified, there exists a realistic possibility that the outcome of the decision could have been different. Given the interrelationship between the claims made by the applicant, including in their treatment by the Authority, this is the antithesis of a case where there is an inevitability about the outcome.[2] The applicant has satisfied me that the threshold of materiality is met in this case and is therefore entitled to the relief sought in his application.
[2] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610.
Ground 1B
I am not persuaded that the complaints identified by the applicant under ground 1B can be sustained.
I consider that each of the concerns that led to the Authority characterising the CID visits as instances of routine monitoring involved reasoning that was open to the Authority and rationally supported by the evidence before it.
It was not unreasonable or irrational for the Authority to reason that the intervals of time between the CID visits and the time between the disappearance of the applicant’s brother-in-law in 2008 and the first CID visit (on the applicant’s account this occurred in 2010) suggested that the CID interest in the applicant lacked a personal or sustained dimension. I reject the submission that the Authority, having earlier given the applicant the benefit of the doubt in relation to the date of the brother-in-law’s disappearance, should have transposed the applicant’s evidence about the date of the CID visits, which evidence was uncontroverted and which evidence the applicant clarified in his second SHEV statement to include information about a first visit “in approximately June 2010” (CB 71[9]).
It was not unreasonable or irrational for the Authority to draw inferences about the quality of the CID interest in the applicant based on the lack of further action from the CID (aside from the visits). Beyond the statement impugned by the applicant, the Authority was also concerned by the applicant’s own evidence that despite being asked to report to the CID he failed to do so and suffered no reprisals as a result. On the information that it accepted – which did not include the applicant’s claims to have been questioned by the CID in 2009 and 2010 and to have been in hiding between 2010 and 2012 – the conclusion drawn by the Authority was unexceptional.
GROUND TWO
Applicant’s submissions
Ground two is directed at [15] of the Reasons (reproduced at [16] above) which the applicant submits involves the following three claims made by the applicant for the first time in his SHEV interview on 16 December 2016 (SHEV interview claims):
(a)after he reported his brother-in-law’s disappearance to the police, alleging that the SLA or CID had abducted him, the police came and asked the applicant questions in 2009 and 2010;
(b)between 2010 and 2012 the applicant was in hiding, moving between friends and relatives; and
(c)between 2010 and 2012, the CID would come looking for the applicant, and whenever he heard the sound of motorbikes, which he understood to be used by the CID, he would go into hiding.
The applicant notes that the Authority expressly rejected claim (a) on the basis that the applicant “has not previously claimed that the authorities questioned him but said in both his previous written statements that he was not at home on the three occasions when the CID came to visit”. The Authority rejected claim (b) on the basis that it differed from his written claims and because of the “generally vague nature of his evidence at the [SHEV] interview about what happened after 2009”. The Authority stated overall that “I reject these claims as a later embellishment designed to enhance [the applicant’s] protection claims”.
The applicant submits that by making these adverse credibility findings without first offering him an opportunity to comment on the lateness of the SHEV interview claims and any inconsistency between them and his earlier written claims, the Authority acted unreasonably.
The applicant emphasises as significant that the findings were made despite the fact that:
(a)the applicant had not been asked in his SHEV interview to explain either why he had made the SHEV interview claims late or why they differed from the claims made in his two statutory declarations; and
(b)no express finding was made by the delegate about the SHEV interview claims, meaning that there was nothing to signal to the applicant that he should make submissions or seek to give new information to the Authority about the lateness of these claims and their consistency with his written claims.
The applicant submits that it can be inferred from the absence of a reference in the Reasons to s 473DC(1) of the Act – or any mention of a request or invitation to the applicant to comment on the SHEV interview claims – that the Authority did not consider exercising this discretionary power.
The applicant submits that the Authority knew (or should be taken to have known) that it did not have, but that the applicant was likely to possess, information that affected the assessment of these claims and that in these circumstances, it was unreasonable for the Authority not to consider exercising its power in s 473DC(1) to seek that information from the applicant. The applicant submits that his case is relevantly indistinguishable from that considered by the Federal Court (Barker J) in DFW16 v Minister for Immigration and Border Protection [2018] FCA 746 at [61] and [71] insofar as this category of alleged error is concerned.
Minister’s submissions
The Minister accepts that the Authority’s power to get new information in s 473DC of the Act is conferred on the implied condition that it be considered and where appropriate exercised, within the bounds of reasonableness (referring to ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [3] per Kiefel CJ, Bell, Gageler and Keane JJ). However, a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error (referring to DPI17 v Minister for Home Affairs [2019] FCAFC 43, at [39] per Griffiths and Steward JJ). The reasonableness of the Authority’s exercise of power must also be considered in a context where s 473DC(2) of the Act states that the Authority “does not have a duty to get, request or accept, any new information”.
The Minister submits, by reference to ABT17, that this was not a case where the Authority was confronted with an “informational gap” that could have been bridged by a further interview (ABT17 at [15]-[16]) and neither was the Authority troubled by a concern that the applicant’s evidence at the SHEV interview was “generally lacking in detail” or “vague and hesitant” (ABT17 at [15]-[16]). Nor was the applicant’s demeanour at the SHEV interview apparently relevant to either the delegate’s findings or those of the Authority. Nor did the Authority reject any of the applicant’s evidence that the delegate accepted, based on the applicant’s demeanour at the SHEV interview or otherwise (cf. ABT17 at [25]).
The Minister submits that this is also not a case by which the Authority decided a new issue that was not determined by the delegate (cf. Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [76]). The delegate found that, overall, the applicant was of no interest to the Sri Lankan authorities for any reason when he left the country (CB 130) and in finding that the applicant did not have a political profile or links to the LTTE of any kind found that the brother-in-law’s disappearance was not evidence enough to warrant any attention from the authorities towards the applicant when he was never questioned about it in the past while in Sri Lanka (CB 128).
To the extent that the applicant contends that the Authority reached different findings on various matters to those of the delegate, it was entitled to do so. Something more than that is required to establish that it was legally unreasonable for the Authority not to consider exercising its powers under s 473DC of the Act (FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 at [39]). The Minister submits it to be further significant that the applicant has not identified any aspect of the delegate’s reasoning which indicates that the Authority was disadvantaged in comparison with the delegate (ABT17 at [22]).
The Minister submits that the matters of concern to the Authority were more in the nature of omissions, rather than differences between accounts given by the applicant and that the applicant should be understood as having been alive to the need to maintain consistency between accounts and to include relevant information. This is said to be evident from the applicant’s second SHEV statement at [9] (CB 71) which records:
Since making my 2013 Statement, I have clarified the number of visits made to my household by the CID prior to me fleeing Sri Lanka. I was very stressed at that time and confused about events. Since then, I have recalled a third, earlier visit from the CID, about six or seven months after I made the reports…
The Minister submits that the applicant’s reliance on the decision of DFW16 is misplaced because a critical feature of that case was that the Authority had made adverse findings based on inconsistencies between claims made in an earlier protection application and the extant SHEV application in circumstances where the delegate had not relied on the earlier material and the possibility that the Authority might do so was not signalled to the applicant as a result. In this case instead, the applicant expressly adopted the first SHEV statement in support of his second, valid, application for the visa (CB 70, [1]).
The Minister submits that the better guide is the decision of a Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 where at [72]-[76] Reeves, Robertson and Rangiah JJ said:
In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires 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. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
We would not however approach the resolution of the appeal by considering whether or not the delegate’s decision indicated that all aspects of the appellant’s credit were at issue in the Authority's review. That is to view the procedure through a natural justice lens.
We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.
There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.
CONSIDERATION OF GROUND TWO
I do not consider that the failure of the Authority to exercise, or to consider the exercise, of the discretionary power in s 473DC(1) of the Act to get information from the applicant in this case sounds in jurisdictional error.
While an evaluation of the reasonableness of the approach taken by the Authority must be responsive to the individual circumstances of the case, I accept the submission of the Minister that many of the hallmarks of unreasonableness identified in earlier decisions, are absent in this case. The information that the Authority rejected was, in general terms, also rejected by the delegate and it remained within the power of the applicant to make submissions and/or to give further information directed at encouraging the Authority to take a different approach including in circumstances where he was plainly aware of the importance of providing a comprehensive and consistent account of events in support of his protection visa application as is evident from the corrections he made in the second SHEV statement.
The limited review process established by Part 7AA is different to the Part 7 review in important respects. As the Minister correctly observes – including by reference to the decision of DGZ16 - the “issue” analysis is inapt in the absence of a provision the equivalent of s 425 of the Act. It is also a matter of contextual significance that the Authority is under no compulsion to “get, request or accept any new information”.
Finally, I accept the submission of the Minister that the applicant’s reliance on the decision of DFW16 does not assist. While both DFW16 and the present case concern the Authority’s treatment of information supplied by a review applicant in the form of a personal account, that is where the similarity ends. I consider it to be a point of significant difference that in DFW16 the Authority deployed information that had not been adopted as part of the extant protection visa application or review process to undermine material that was squarely (and to the applicant’s knowledge) before it. This feature is absent in this case. Instead, I consider that the Authority’s approach involved an orthodox appraisal of information that the applicant had supplied in support of his protection visa application and in a manner that was generally consistent with the approach adopted by the delegate.
ORDERS
I have found that ground 1A is established. It follows that writs of certiorari and mandamus will issue to quash the Authority’s decision and to require the Administrative Review Tribunal to reconduct the review of the delegate’s decision according to law.
There will be an additional order that the first respondent pay the applicant’s costs to be agreed or in default of agreement to be in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 21 October 2024
Annexure A
1.The Second Respondent engaged in reasoning that was unreasonable, illogical or irrational, and thereby fell into jurisdictional error, in finding that:
a.the Applicant did not report his brother-in-law’s disappearance to the Dri Lankan Police; and/or
i.In its Decision Record at [12], the Second Respondent stated that it rejected the Applicant’s claim that he has reported his brother-in-law’s disappearance to the Sri Lankan Police because his evidence was that he reported the disappearance because his wife’s family had not, which the Second Respondent found was unlikely because the Applicant’s brother-in-law had four other brothers.
ii.This reasoning was unreasonable, illogical or irrational because the Second Respondent assumed that the four other brothers were ready and willing to report their missing brother’s disappearance to the Sri Lankan Police, which assumption was not supported by the evidence.
iii.In its Decision Record at [12], the Second Respondent also stated that it rejected the Applicant’s claim that he had reported his brother-in-law’s disappearance to the Sri Lankan Police because it found that this was not plausible based on its finding that a Police report dated 25 November 2008 made clear that the Police were aware that the Applicant’s brother-in-law was missing and the family had been warned to hand him over to Police.
iv.This reasoning was unreasonable, illogical or irrational because the Police Report dated 25 November 2008 provided no foundation for the findings that the Police were aware that the Applicant’s brother-in-law was missing and the family had been warned to hand him over to Police.
v.Further, neither the finding that the Police were aware that the Applicant’s brother-in-law was missing and nor the finding that his family had been warned to hand him over to the police afford a logical basis for the finding that the Applicant did not report his brother-in-law’s disappearance to the Police.
vi.These errors in the Second Respondent’s reasoning were material, and give rise to jurisdictional error, because the Second Respondent’s decision could realistically have been different had they not been made.
b.the visits by the Criminal Investigation Department (CID) of the Sri Lankan Police to the Applicant’s home were for the purpose of routine monitoring rather than because the CID was interested in the Applicant.
Particulars
i.In its Decision Record at [16], the Second Respondent stated that while it accepted that the CID visited the Applicant’s home in 2010, 2011, and 2012, and that on each occasion he was not there, it found that the Applicant was not a person of interest to the CID because of the timing of the visits, the fact that they happened well after the disappearance of the Applicant’s brother-in-law, and the fact that nothing further ever happened to the Applicant.
ii.This reasoning was unreasonable, illogical or irrational because the timing of the visits by the CID did not provide a logical basis for a finding that the CID had no interest in the Applicant.
iii.Further, the Second Respondent had accepted in its Decision Record at [11] that the Applicant had made a “simple error in recalling the date” of his brother-in-law’s disappearance as being in 2009 rather than 2008, but did not consider the same error could have extended to the events connected with the disappearance, including the dates of the CID visits.
iv.Further, the fact that nothing further ever happened to th Applicant was entirely consistent with the Applicant’s evidence, which was accepted by the Second Respondent in its Decision Record at [16], that he was not present when the CID visited his home on each occasion.
v.These errors in the Second respondent’s reasoning were material, and give rise to jurisdictional error, because the Second Respondent’s decision could realistically have been different had they not been made.
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