EYP17 v Minister for Immigration
[2019] FCCA 1583
•13 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EYP17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1583 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in important respects and other fears found not to be well-founded – whether the Authority failed to consider an issue or submissions or made findings that were unreasonable considered – jurisdictional error established. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25D |
| Cases cited: ACE15 v Minister for Immigration [2017] FCA 1054 |
| Applicant: | EYP17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3459 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 17 October 2017 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to re-determine according the law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3459 of 2017
| EYP17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 17 October 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the applicant’s submissions filed on 23 May 2019.
The applicant is a Sri Lankan Tamil, born in Colombo on 16 September 1989.[1] He arrived in Australia at Christmas Island by boat on 21 November 2012[2] and was thus an unauthorised maritime arrival within the meaning of s.5AA of the Migration Act 1958 (Cth) (Migration Act). As such he was prevented from lodging a protection visa application by s.46A(1) unless the Minister issued a notice under s.46A(2) permitting him to do so. He was also a “fast track applicant” within the definition of that term in s.5 of the Migration Act. That in turn meant that any review of a decision to refuse his visa would be pursuant to Part 7AA of the Migration Act.
[1] Court Book (CB) 25
[2] CB 32, 254
In his entry interview conducted on 27 November 2012, the applicant claimed that he was in fear of his life because he operated a news website in Tamil named “Tamilaa”, which was registered with the appropriate government agency. He was threatened, kidnapped and attacked. He did not know whether, and if so how, his attackers were connected with the government after publishing news from Wikileaks.[3]
[3] CB 129-132, cf CB 145-146
A notice inviting the applicant to submit an application for a SHEV,[4] which is a type of protection visa, was presumably issued to him although when this was done is unclear. His application was lodged on 29 June 2016.[5]
[4] Safe Haven Enterprise Visa
[5] CB 11-54; 71
The applicant reiterated his claims, albeit in more detail in a statement attached to his application.[6] He also claimed:
[6] CB 57-64
a)he published news in the Tamil language on politics;
b)he had about seven members of staff;
c)after his website was registered he started publishing more controversial material, including about government links to criminals;
d)a few weeks after obtaining his media licence, he put up posters to advertise his media website in Colombo, Vavuniya and Jaffna. He was arrested whilst putting up posters in Colombo and was detained for two days after payment of a bribe;
e)it was after that that he started receiving threatening phone calls at his office and also at home;
f)his website achieved second ranking amongst Tamil online media sites in Sri Lanka in terms of visits;
g)he was kidnapped in late May 2012 by men who said they were from the CID[7] and police, beaten, and ordered to stop his website. He stopped his website on 30 May 2012. This however did not stop the threats. He was detained “two or three times” and beaten by police, urinated on during questioning and his uncle paid bribes so that he may be left alone;
h)his uncle arranged his trip to Australia, but after his arrival on Christmas Island he received news that his uncle had been kidnapped and killed; and
i)he had started the website again in Australia. Nothing had at that time been published, but he was working on content. He believes that Tamils around the world should know what is happening in Sri Lanka.
[7] Criminal Investigation Department
Sent with the application and statement were a number of documents including the “Tamilaa” logo,[8] and the “Ministry of Mass Media and Information Registration of Websites Licence”.[9] Also sent to the delegate was a summary of the applicant’s psychological counselling,[10] and a death certificate and translation thereof[11] purporting to be that of the applicant’s uncle.
[8] CB 65
[9] CB 68; 225
[10] CB 226-229; this document was before the delegate; see page 2, item 9 of the CB index
[11] See email at CB 324 and page 4, item 14 of the CB index
A submission was sent to the delegate on 20 December 2016.[12] It argued that:
a)the applicant was a journalist and that journalists, particularly Tamil journalists, were and continued to be targeted;[13]
b)the Sirisena government had not instituted meaningful reform, a culture of torture prevails, since the end of the war torture has been practiced openly as a weapon of fear, that it is not safe for an individual with any links to the LTTE[14] to return and that Tamils who return to Sri Lanka are being watched by a network of informers and intelligence services;[15]
c)Tamils continue to face human rights abuses;[16] and
d)Tamils returning from abroad continue to be arrested on suspicion of past LTTE involvement.[17]
[12] CB 237-249
[13] CB 237-242
[14] Liberation Tigers of Tamil Eelam
[15] CB 242-244
[16] CB 244-246
[17] CB 247-248
The application was rejected on 10 January 2017. The delegate was satisfied with the applicant’s account of events.[18] She also accepted a claim made at the delegate’s interview to the effect that the applicant’s father had been a member of the LTTE, but due to changes in the country situation he did not face a well-founded fear of persecution,[19] nor did he face a real risk of significant harm.[20]
[18] CB 112
[19] CB 113-117
[20] CB 117-118
The matter was then referred to the Authority, pursuant to s.473CA of the Migration Act.
The Authority
The Authority commenced by referring to four sets of submissions sent to it by the applicant’s then representative.[21] In addressing the third submission, which contained an assertion that the applicant would continue to be politically active if returned to Sri Lanka, and that he would be inclined to be more politically active if able to express his opinions without fear of harm, the Authority found that these claims were “new information” and that the applicant had not claimed to have been politically active in the past. It buttressed this finding by referring to the applicant’s evidence that he did not have a connection to political parties. The Authority did not consider that this “new information” came within s.473DD of the Migration Act.[22] However, it was satisfied that there were exceptional circumstances to justify the consideration of several other items of country information included in the third submission.[23]
[21] CB 333-334
[22] CB 333-334 [8]
[23] CB 334 [9] [10]
The Authority was satisfied that the fourth submission[24] came within s.473DD.[25]
[24] at CB 325-326
[25] CB 335 [12]
After outlining the applicant’s claims and a giving a brief overview of the applicable law, the Authority referred to a STARTTS[26] summary of psychological treatment and accepted that the applicant had been treated for PTSD.[27] However, it was confident that he had been able to engage with the assessment process, including the interview, and found that the applicant’s mental health condition did not overcome the serious concerns that it had about his credibility.[28]
[26] Service for the Treatment and Rehabilitation of Torture and Trauma Survivors
[27] Post Traumatic Stress Disorder
[28] CB 336-337 [17]
Having so found, the Authority rejected the applicant’s claim that his father had been a member of the LTTE because the claim had not been mentioned at his entry interview. It did accept that his father had been a writer but did not accept that the applicant had or would experience any repercussions as a result of his father’s activities.[29]
[29] CB 337-338 [21]-[26]
The Authority observed that the details provided by the applicant in his protection visa interview were generally consistent with his protection visa application and other evidence he had given to the Minister’s Department, but was not[30] satisfied that consistency alone was enough to conclude that the claims were true.[31] This was because:
a)there were inconsistencies in his evidence of whether the CID were responsible for his abduction and mistreatment;[32]
b)the claimed scrutiny that the relevant Sri Lankan ministry gave to the applicant’s website before it was registered was not in any way commensurate with the lack of interest that it took when he began to publish more controversial items. The Authority did not accept that the government would have its people intimidate and kidnap the applicant when it could take other action;[33]
c)the “Registration of Website Licence” contains different fonts and a misalignment between heading and details, and there is a prevalence of document fraud in Sri Lanka.[34] It also noted the lack of computer databases to store information, and that government departments continue to keep records in hard copy format;[35] and
d)it did not accept that the website had the popularity, or number of staff claimed, if it was only operational between January 2011 and May 2012. It observed that there were no screenshots, employment contracts, business registration documents or other documents evidencing the existence of the website.[36]
[30] The relevant passage reads, “… but for the following reasons I am satisfied …”. Read in context, the word “not” was inadvertently omitted.
[31] CB 340 [38]
[32] CB 340 at [40]-[41]
[33] CB 341 [44]
[34] CB 341-342 [46]-[48]
[35] CB 342 [48]
[36] CB 342 [49]
Having so found, the Authority found that the applicant’s claims regarding the website in Sri Lanka were not true, and rejected the claim that he had been working on a website in Australia.[37]
[37] CB 342-343 [51]-[54]
The Authority proceeded to find,[38] apparently in reference to the submissions about the dangers to journalists, that the applicant had made no mention of engagement in any form of journalism. This reinforced its conclusions that the applicant’s claims had no credible basis. The Authority also found the applicant’s evidence regarding his uncle’s death to be inconsistent and unconvincing.[39]
[38] at CB 343 [55]
[39] CB 343 [59]-[60]
Moving on to the claims about persecution for reason of race, the Authority commented that “… in the past some Tamils have experienced difficulties in Sri Lanka …”,[40] but found that the information before it indicated that the overall situation for Tamils had improved in recent years. It referred to DFAT[41] information that Tamils of all backgrounds generally have a low risk of experiencing discrimination. It also canvassed UNHCR[42] and UK information referring to those Tamils who may need international protection. It did not accept that the applicant came within the specified groups.[43] It then summarised information about the treatment of returnees, to the effect that those charged for illegal departure may be kept in prison for up to 24 hours, and that although prison conditions are poor and the applicant may find incarceration stressful in view of his mental health condition, imprisonment for a short time or a fine that may be imposed would not amount to persecution or significant harm.[44]
[40] CB 344 [64]
[41] Department of Foreign Affairs and Trade
[42] United Nations High Commissioner for Refugees
[43] CB 344-345 [67]-[69]
[44] CB 345-347 [70]-[83]
The Authority then referred to a submission to the effect that there was an established practice for the authorities to wait until returnees had cleared the airport before detaining them. It then disregarded that information on the basis that it dated from 2012 and the situation had improved.[45]
[45] CB 347 [84]
The decision under review was affirmed.
The current proceedings
These proceedings began with a show cause application filed on 13 November 2017. Those grounds were extensive and detailed. Nevertheless, at the trial of this matter on 7 June 2019, the applicant, through his counsel, sought leave to rely upon a proposed amended application. The Minister had, in his submissions filed on 31 May 2019, foreshadowed opposition to the granting of leave but that was not pressed, subject to an order for costs thrown away which I made. I granted the leave sought. Particular (a) to Ground 3 of the amended application was not pressed.
The application as thus amended contains three grounds:
1. The Authority erred in failing to consider an issue that clearly arose [on] the evidence before it, that being whether the applicant’s diagnosis of Post Traumatic Stress Disorder was corroborative of his claims to have been tortured.
2. The Authority erred in failing to lawfully consider clearly articulated submissions made to it.
Particulars
(a) Submissions on the subject of the danger to Tamils for reason of their race, particularly at CB 244-246 and CB 325-6.
(b) Submissions on the danger to returned asylum seekers, particularly at CB 247-8.
3. The findings of the Authority were legally unreasonable.
Particulars
(a) …
(b) The finding that the relevant Ministry of the Sri Lankan government would not seek to undertake threatening phone calls or to have the applicant kidnapped, in circumstances where the applicant did not claim that the threats came from the Ministry.
(c) The finding that the applicant’s “Registration of Website Licence” should be given no weight because of irregularities in the font and differences in the alignment of print which indicate that details have been inserted onto a printed form, which is consistent with the Authority’s finding that most records are kept in hard copy.
I have before me as evidence the court book lodged on 26 March 2018.
Consideration
In his submissions, the applicant is trenchantly critical of the Authority’s reasoning. That is somewhat harsh, as will be developed below. Nevertheless, the three issues raised by the applicant are all plainly arguable. First, the applicant contends that, having accepted that the applicant suffered a mental health condition (PTSD), the Authority failed to link that diagnosis to his claims of being harassed, threatened and beaten. Secondly, the Authority is said to have failed to engage in an active intellectual process of considering submissions made by the applicant to the Authority and new information accepted for consideration by the Authority, having regard to whether there were exceptional circumstances justifying it doing so. In that regard, the Authority stated at [11] and [12] of its reasons:[46]
The fourth submission refers to a number of sources of country information which is already before me. It also included the following:
• The Guardian, "Torture by Sri Lankan police routine, says human rights lawyer", 14 July 2017.
• United Nations Human Rights Council, "UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment on his mission to Sri Lanka", 27 February - 24 March 2017.
This information was not before the delegate. It is new information. The submission contends that the information should be considered as it is credible personal information that relates personally to the applicant if he is forced to return and had it been known it would have affected the consideration of the applicant's claims. I do not agree. The sources are general country information and they do not relate personally to the applicant. However, the sources post-date the delegate's decision and as such I am satisfied the documents could not have been provided to the Minister before the delegate made her decision. Having regard to all the circumstances, I am satisfied that there are exceptional circumstances to justify the consideration of this new information.
[46] CB 334-335
It is reasonable to suppose that if the Authority considers there are exceptional circumstances warranting the consideration of new information, it would have something to say about that new information as part of its reasoning process.
The third challenge to the Authority decision relates to the Authority’s finding at [55]-[56][47] that the applicant was not in the past and would not in the future be considered an independent journalist. Further, the Authority is said to have set up a “straw man” at [44][48] in finding that the Sri Lankan Ministry of Mass Media and Information (Ministry) would not have made threatening phone calls or kidnapped the applicant or represent that they were from the police or the Sri Lankan CID. The applicant contends that he made no such claim.
[47] CB 343
[48] CB 341
The Authority also found fault with the website licence at CB 225 because different fonts had been used for different details, and there was a difference in alignment between the headings listed and the details of the website, indicating that they may have been attached (or inserted) separately. Also, the licence is in English.[49] Of this the following is put on behalf of the applicant:
a)no finding about the veracity of a document can be drawn from the fact that different fonts are used. Counsel’s Practising Certificate (genuinely) issued by the NSW Bar Association contains at least three different fonts;
b)the Authority noted country information as to a lack of computerised databases and that most recorded are kept in hard copy;[50] and
c)the difficulties that the Authority cites in the layout of the website licence are entirely consistent with details being typed on to a printed form which is consistent with there being a lack of computerised databases.
[49] see CB 341 [46]
[50] CB 342 [48]
That the document is in English should hardly be surprising in a country where the two main population groups speak different languages which use different scripts. The Court may take judicial notice of this in the Sri Lankan context.
The applicant contends that these findings by the Authority were legally unreasonable as they lacked any evident or intelligible justification.
Ground 1
I agree with the Minister’s submissions in relation to the first ground.
It is well-established that, in reviews conducted by the Administrative Appeals Tribunal (Tribunal) under Parts 5 and 7 of the Migration Act, the Tribunal is under a duty to consider a review applicant’s claims, whether they are made expressly or arise squarely on the material before it.[51] As Allsop J (as his Honour then was) observed in NAVK v Minister for Immigration,[52] the claim “must … either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence.” The claim must, his Honour said, arise “tolerably clearly from the material itself”.
[51] see, for example, NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at 17 [55], 22 [68] per Black CJ, French and Selway JJ
[52] [2004] FCA 1695 at [15]
These principles are equally applicable to reviews conducted by the Authority pursuant to Part 7AA of the Migration Act.[53]
[53] AYY17 v Minister for Immigration [2018] FCAFC 89 at [18] per Collier, McKerracher and Banks-Smith JJ
In MZWDG v Minister for Immigration,[54] Young J observed at [39] that, in so far as the Tribunal is required to consider a claim arising tolerably clearly on the material before it, such material includes its own “findings or conclusions”. In that case, his Honour held that the Tribunal had failed to consider a claim that arose from its findings, namely, whether the appellant had modified, and would, if he were returned to his receiving country, modify his behaviour to avoid persecution for a Refugees Convention reason.[55] That claim was overlooked in circumstances where the Tribunal had “raised the issue of whether the appellant had modified his behaviour to avoid persecution, and indeed implicitly recognised that he had done so”, but had failed “to specifically address the merits of that claim in its decision”.[56] The same cannot be said about the Authority’s findings in the present case.
[54] [2006] FCA 497
[55] at [43]
[56] at [48]
The reasoning of Young J in MZWDG at [39] was applied by Bromberg J in ACE15 v Minister for Immigration,[57] to which the Full Federal Court made reference in AYY17, upon which the applicant relies in his submissions.
[57] [2017] FCA 1054 at [26]-[27]
However, none of MZWDG, ACE15 or AYY17 stand for the proposition that the Tribunal or the Authority is required to deal with hypotheses not raised by an applicant or which do not arise squarely on the material before it. As Weinberg, Jacobson and Lander JJ explained earlier in Minister for Immigration v SZANS:[58]
Counsel for the respondent urged upon us the proposition that once there was a finding that the respondent would be pressured to marry, it was necessary for the RRT, in order to complete the exercise of its jurisdiction, to consider whether he would succumb to that pressure.
There are two answers to this. First, the respondent did not claim that he would succumb to any such pressure. Thus, the RRT was not obliged to deal with a hypothesis that was not raised; see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 … (2003) 211 CLR 441 at [31]-[32]. …
[58] (2005) 141 FCR 586 at 593 [46]-[47]
The applicant’s argument in the present case is not that a claim arose on the material before the Authority, but that an “issue” so arose and was a consideration made mandatorily relevant[59] by ss.473CC(1) and 473DB(1) of the Migration Act. The applicant’s argument is unsupported by any binding authority. In AYY17, the Full Federal Court used the words “claim” and “issue” interchangeably at [1], [16], [18], [26] and [30]-[31]. At [28], their Honours made the tentative observation, in obiter, that “consideration of an issue may well be a different matter from consideration of a claim”, but that “[t]he distinction … on the facts of th[at] case [wa]s not of significance” because the issue was not one “expressly raised or squarely arising on the materials before the [Authority], including [its] own findings.” Their Honours then observed that, “[e]qually, there are probably other cases where the terms have been used more interchangeably.”
[59] in the sense described by Mason J (as his Honour then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41
What their Honours did not say, however, is that any “issue” (as distinct from a “claim”) raised by an express finding of fact is one that must be identified and addressed to finality in order that the Authority can complete the exercise of its jurisdiction. This would in my view impose an intolerable burden on the Authority and would be inimical to the purposes of the scheme of review established by Part 7AA of the Migration Act. In AYY17, for example, the appellant characterised an “issue” (which appears nowhere in Part 7AA; cf ss.360(1) and 425(1)) as “a topic or question to be resolved in determining whether a person meets criteria for a particular visa”.[60] What would be the metes and bounds of the Authority’s duty to consider unarticulated issues as distinct from claims? Would the Authority be required to ask itself what unarticulated issues are raised by findings that it makes and then to proceed to address each of them separately in its reasons? If a finding that the Authority makes on an unarticulated issue gives rise to yet another issue, must the latter be addressed to finality? Not only is the applicant’s argument unsupported by authority, but if accepted it would raise more questions than it answers.
[60] at [27]
In any event, the “issue” which the applicant argues was “a clear and obvious issue arising from the [Authority]’s finding [that he suffered from a mental health condition] and was required to be considered” was not one that was expressly raised or squarely arose on the material before the Authority, including its own findings. The applicant’s mental health condition, described in the STARTTS report, was not the subject of any claim made by him or on his behalf by his former representatives. It did not, for example, appear in the applicant’s statutory declaration made on 24 June 2016[61] or in his representative’s post-hearing submissions dated 20 December 2016.[62] In such circumstances, as the Full Federal Court held in AYY17 at [30], it is more difficult to persuade the Court an unarticulated claim (or issue) has clearly emerged from the materials. Put another way, the applicant is seeking now to advance a hypothesis arising from the Authority’s findings that was not raised at any earlier time. The Authority not having dealt with it does not sound in jurisdictional error for the reasons given by the Full Federal Court in SZANS at [47].
[61] CB 57-64
[62] CB 237-249
Moreover, the STARTTS report itself was either silent as to the cause of the applicant’s symptoms or identified some cause other than that he had been harassed, threatened and beaten: in the third dot point, for example, the counsellor referred to the applicant’s “lacking freedom” in detention in Australia and his having been “impacted by his [u]ncle’s murder after being kidnapped”;[63] that is to say, his uncle’s kidnapping. No mention was made of the applicant having been harassed, threatened and beaten in the report, and the Authority was not under a general obligation to conduct inquiries, given the restrictive nature of reviews by force of ss.473DA(1), 473DB(1) and 473DC(2) of the Migration Act. Indeed, in DYK16 v Minister for Immigration[64] (a case postdating AYY17), Collier, Middleton and Rangiah JJ rejected an argument to the contrary:[65]
As Logan J pointed out in DJF16 v Minister for Home Affairs [2019] FCA 1285, it is questionable whether there is a duty imposed by Part 7AA of the Migration Act on the IAA to make inquiry of the kind described in relation to the Administrative Appeals Tribunal by the High Court in Minister for Immigration and Citizenship v SZIAI …, namely an obvious inquiry about a critical fact easily ascertained.
[63] CB 311
[64] [2018] FCAFC 222
[65] at [72]
These observations would also militate against the argument now advanced by the applicant. To say that an “issue” arising from a factual finding must be followed to completion is tantamount to saying that an obvious inquiry must be made about a critical fact easily ascertained.
At [22] of his submissions, the applicant refers to the recent judgment of Judge Humphreys in BQJ18 v Minister for Home Affairs & Anor.[66] It is true that a similar ground of review was advanced in that case,[67] but his Honour did not hold, at [48], that the Authority’s failure to consider an “issue” sounded in jurisdictional error; rather, his Honour was not satisfied that the Authority “ha[d] engaged intellectually with the claims of the applicant” [emphasis added]. That the Authority failed to deal with a claim is not what is being asserted by Ground 1 in the present case. Even if I were to conclude that his Honour held that the Authority made a jurisdictional error by failing to consider an “issue” (as distinct from a claim), I would be minded to confine the case to its own facts, the question whether a claim or an issue arising on the material before an administrative decision-maker being one that is heavily fact-dependent.
[66] [2019] FCCA 970 at [34] and [48]
[67] see [34] and [47]
I reject Ground 1.
Ground 2
The Minister seeks to avoid a finding of jurisdictional error in relation to the second ground on the following basis.
By reason of s.473DB(1) of the Migration Act, in reviewing a fast track reviewable decision pursuant to s.473CC(1), the Authority is required to “conside[r] the review material provided to the Authority” under s.473CB. That material includes “material provided by the referred applicant to the person making the decision before the decision was made”,[68] relevantly, the submissions dated 20 December 2016.[69] It also includes any material which the Authority finds meets the criteria in s.473DD of the Migration Act, relevantly, the applicant’s submissions dated 21 July 2017.[70]
[68] section 473CB(1)(b)
[69] CB 237-249
[70] CB 325-326
The Authority’s written statement prepared pursuant to s.473EA(1) (read with s.25D of the Acts Interpretation Act 1901 (Cth)), however, only requires the Authority to give reasons for its decision (that is, its ultimate decision on the review) and to set out its findings on material questions of fact and to identify the evidence relied upon in support of those findings that it has made. What the Authority is not required to do is:
a)to identify every item of evidence before it;[71]
b)to comment on every item of country information before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item;[72]
c)to “give a line-by-line refutation of the evidence for the [applicant] either generally or in those respects where there is evidence that is contrary to findings of material fact made by the [Authority]”;[73] or
d)to give “the sub-set of reasons why it accepted or rejected individual pieces of evidence”.[74]
[71] Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [49] per Besanko, Barker and Bromwich JJ
[72] NAHI v Minister for Immigration [2004] FCAFC 10 at [14] per Gray, Tamberlin and Lander JJ
[73] Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405 at [65] per McHugh J. See also NAUE v Minister for Immigration [2004] FCAFC 103 at [12] per Ryan, French and Nicholson JJ
[74] Durairajasingham at [67]
The fact that a matter has not been identified in the Authority’s written statement does not mean that it has been overlooked.[75] It may indicate that no express finding was made on a particular matter because it was not considered to be material.[76]
[75] cf Minister for Immigration v SZGUR (2011) 241 CLR 594 at 605-606 [31]-[32] per French CJ and Kiefel J (as her Honour then was), 616-617 [69] per Gummow J, 623 [91] per Heydon J, 623 [92] per Crennan J
[76] Minister for Immigration v Yusuf (2001) 206 CLR 323 at 330-332 [5], [10] per Gleeson CJ, 346 [69] per McHugh, Gummow and Hayne JJ
In the present case, the Authority stated at [3][77] that it had regard to the material given to it by the Secretary of the Minister’s Department. That material included the submissions dated 20 December 2016. At [11]-[12],[78] the Authority expressly referred to, and considered, the two items of country information identified in the applicant’s submissions dated 21 July 2017. In the light of the Authority’s express reference to this material, the Minister submits that the better inference to draw from its not having commented on particular reports referred to in the applicant’s submissions is that they were considered, but found not to be material to its findings on material questions of fact. That inference is said to be comfortably available in the light of the following.
[77] CB 333
[78] CB 334-335
The Authority found that the applicant would not be imputed with “any type of profile arising from his past circumstances on his return to Sri Lanka”,[79] including any “pro-LTTE or anti-Sri Lankan government political opinion”.[80] The Authority also found that there was no credible evidence to suggest that the applicant’s family members had any links or involvement with the LTTE.[81] Similar findings were made at [74]-[75].[82] In the light of these findings, it can be inferred that the Authority considered the country reports cited at CB 242-244 (under the heading, “LTTE links”), CB 325 and CB 247-248 [47], [50] and [52]-[54] not to be material, given that those reports emphasised the risk faced by those persons of Tamil ethnicity who had a real or perceived connection to the LTTE. By the Authority’s findings, the applicant did not meet that description. In any event, the Authority referred to country information that made the same point.[83]
[79] CB 345 [68]
[80] CB 345 [69]
[81] CB 345 [68]
[82] CB 346
[83] CB 344-346 [67], [69], [74]-[75]
At [64]-[65],[84] the Authority relied upon country information, the most recent of which was dated 24 January 2017, on the situation for Tamils in Sri Lanka and concluded, by reference to that information, that the situation had “improved considerably in recent years”, with Tamils having “a substantial level of political influence and their inclusion in political dialogue has increased since the Sirisena government came to power in 2015” and “the monitoring and harassment” of Tamils having “significantly decreased”. The country information relied upon by the applicant on the situation for Tamils in Sri Lanka dated back to 2014 (under the heading “Tamil Ethnicity”) at [39]-[44],[85] (save for footnote 43) and 2015.[86] The Minister submits that the Authority cannot fairly be criticised for having regard to more up-to-date country information, particularly in the light of the observations of Mason J (as his Honour then was) in Peko-Wallsend Ltd about decision-makers having to base their findings on “the most recent and accurate information that [they] have at hand.” For these reasons also, the applicant’s submissions at [30] cannot be maintained.
[84] CB 344
[85] CB 244-246
[86] CB 246 [45]-[46] cf the new information accepted at [9]-[10] which dates from 2017
The country information cited at [48]-[49] and [51],[87] under the heading “Illegal departure from Sri Lanka”, dated back to 2014 and 2015 (those reports cited at [47], [50] and [52]-[54][88] have been addressed above). In considering the applicant’s claim to fear serious harm by reason of his having departed Sri Lanka illegally, the Authority had regard to more recent country reports published in 2016 and 2017.[89] The Minister submits that, contrary to the applicant’s submissions, the fact that the Authority, at [84],[90] referred to country information dating back to 2012 which was cited by the applicant does not mean that it did not give lawful consideration to the relevant submissions. The Authority there was concerned with a specific submission that “the country information indicated that there was an established practice by the Sri Lankan authorities of waiting until returnees cleared the airport before detaining them with some being picked up months afterwards.” That submission was made in the applicant’s submissions to the Authority dated 3 February 2017.[91] It raised a particular factual allegation to which the Authority, quite properly, turned its mind. It was separate from the matters raised in the applicant’s submissions at CB 247-248, which were focused on his being at risk of being charged with offences under Sri Lankan law and arrested and detained upon arrival in Sri Lanka.
[87] CB 247
[88] CB 247-248
[89] CB 345-347 [71]-[75], [77], [79]-[81], [84]
[90] CB 347
[91] CB 292 [31]
The Minister in conclusion submits that even if it were held that the Authority did not have regard to the applicant’s submissions at CB 247-248, any error would not be jurisdictional, given its findings at [83][92] that any investigation, prosecution and punishment of the applicant under Sri Lankan law “would be a law of general application and would not amount to persecution for the purpose of ss.5H(1) and 5J(1) of the [Migration Act].”[93] That is said to have been a finding that supported the Authority’s conclusion at [85][94] independently of any of its findings on the way in which the applicant would be treated by the Sri Lankan authorities on his arrival in Sri Lanka for his having left that country unlawfully.
[92] CB 347
[93] Hossain v Minister for Immigration (2018) 92 ALJR 780 at 788 [30] per Kiefel CJ, Gageler and Keane JJ, 795 [72] per Edelman J; Minister for Immigration v SZMTA (2019) 93 ALJR 252 at 263 [45] per Bell, Gageler and Keane JJ
[94] CB 347
I do not accept the Minister’s submissions. I prefer the applicant’s submissions on this ground. As I observed above at [25], if the Authority accepts new information on the basis that there are exceptional circumstances justifying the consideration of it, it is reasonable to expect that the Authority would say something about it in its reasons. To accept new information in exceptional circumstances and then to remain silent about it in its reasons invites a conclusion that the Authority has failed to engage with the material in any meaningful way.
I accept that the purpose of a submission to the Authority in the current context is to put forward arguments and information with the intention of influencing the result of the application. There can indeed be no other purpose. The Authority is legally required to consider submissions made to the delegate and information therein which are referred to it pursuant to s.473CB(1), read with s.473DB(1). The word “consider” has a particular meaning in this context. It means to direct an active intellectual process towards a matter.[95]
[95] Tickner v Chapman (1995) 57 FCR 451, 462, 495; cf Minister for Immigration v MZYTS (2013) 230 FCR 431 at [38]
The Authority was thus required to consider, that is, to direct an active intellectual process towards the material provided by or on behalf of the applicant, in this case the submissions at CB 237-249. It was also required to consider submissions made to it if the information therein complied with s.473DD. Whether it has engaged in lawful consideration is a question of substance, not form.[96]
[96] DFW18 v Minister for Home Affairs [2019] FCA 599 at [46]
The submissions were to the effect that reforms instituted by the current government of Sri Lanka were not meaningful, torture continued, and Tamils suffered repression and human rights abuses.[97] The updated information at CB 325-326 is to similar effect. Yet nowhere in the Authority’s discussion of the situations of Tamils in Sri Lanka at CB 344-345 is there any mention of these submissions or information in them. The conclusion to be drawn, in my view, is that the Authority did not give lawful consideration to them.[98]
[97] CB 242-246
[98] Although not put in issue by the applicant, the same could be said of the new information accepted at [9]-[10] with the exception of the 2017 DFAT country report
Nor has there been any realistic consideration of the submissions at CB 247-248 about illegal departure from Sri Lanka. There is a reference in the Authority’s reasons at [84][99] to submissions about returnees but it dates the information therein to 2012, and the information at CB 247-248 is sourced to documents dated well after that. Again, the conclusion to be drawn, in my view, is that the Authority did not give lawful consideration to the relevant submissions.
[99] CB 347
I find that Ground 2 has been established.
Ground 3
The Minister also seeks to avoid a conclusion of jurisdictional error in relation to the third ground as follows.
Contrary to the applicant’s submissions, none of the findings identified in the particulars to this proposed ground of review were irrational, illogical or unreasonable.[100]
[100] it is unclear what the applicant’s reliance upon legal unreasonableness adds in this context. That doctrine is concerned not with the making of factual findings (unlike irrationality or illogicality), but, rather, the exercise of discretionary powers: see VN Railway Pty Ltd v Federal Commissioner of Taxation (2013) 211 FCR 188 at 201 [68]-[69] per Tracey J, citing Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ, 649 [124] per Gummow J and Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1177-1179 [67]-[74] per McHugh and Gummow JJ, 1188-1189 [139]-[147] per Kirby J. See also at 1194 [173] per Callinan J. See further Minister for Immigration v Li (2013) 249 CLR 332
The applicant’s submissions at [24] are said to misunderstand the Authority’s findings at [55]-[56].[101] The Authority there was not referring to the applicant’s claim to have operated a website for which he had been granted a licence, which it rejected at [52];[102] rather, its focus was on his previous work experience from 2007 to 2011. Details of that work experience are set out at CB 53 and 141. Between 2007 and 2011, the applicant claimed to have worked in business development in Colombo. That work experience, the Authority found at [55],[103] did not reveal that the applicant was involved in any type of journalism. This construction of the reasons is said to be borne out by the language employed by the Authority: “[h]e has made no mention that this employment involved any type of journalism” (emphasis added). Contrary to the applicant’s submissions, the Authority did not find that his claim of setting up and running a website with news content did not involve journalism.
[101] CB 343
[102] CB 342-343
[103] CB 343
The Minister submits that paragraph (b) in the particulars to this ground appears to misunderstand the Authority’s findings at [44].[104] There, the Authority rejected the suggestion made by the applicant during the interview with the Minister’s delegate that the Sri Lankan government or the Ministry would, indirectly, express their disapproval of content on his website by having others threaten him by telephone or have him kidnapped in circumstances where they were capable of expressing their concerns with the website to the applicant directly. In this connection, the Minister notes that the question posed by the delegate was not limited to the Ministry, contrary to what appears to be suggested in the applicant’s submissions; the applicant was asked whether he had received any contact in relation to the content on his website “from any government officials including the Ministry” (emphasis added).[105] The applicant’s response, “they [that is to say, the Sri Lankan government and the Ministry] did not do anything directly but I knew people who did all these things indirectly”,[106] applied just as much to the Sri Lankan government as it did the Ministry (emphasis added). That is said to be consistent with the applicant’s evidence in his statutory declaration, which was to the effect that the Sri Lankan government did not approve of the information that was published on his website. The alleged threatening calls and the kidnapping occurred in that context.[107]
[104] CB 341
[105] CB 340 [42]
[106] CB 340 [42]
[107] CB 58 [10], 59 [16], 60 [18], [20]-[21]
The threatening telephone calls were made anonymously.[108] The Minister submits that it cannot be said to be irrational or illogical for the Authority to reason, therefore, that, in saying that “they” (the Sri Lankan government or the Ministry) carried out “these things” indirectly by utilising other people, the applicant had claimed that “the Ministry or the Sri Lankan government … s[ought] to undertak[e] threatening calls”.
[108] CB 60 [18]
In the same vein, the applicant had claimed, during the interview with the delegate, that he was not sure who had kidnapped him.[109] The Minister submits once again, that it cannot be suggested that the Authority reasoned in an irrational or illogical manner by considering that, in saying that “they” carried out “these things” indirectly by utilising other people, the applicant had claimed that “the Ministry or the Sri Lankan government … s[ought] to … have [him] kidnapped”. Even on the original formulation of the applicant’s claim (that the kidnapping was orchestrated by the Sri Lankan police or the CID), it is said to have been reasonably open to the Authority to reason, as it did at [44],[110] that the “Sri Lankan government … s[ought] to … have [him] kidnapped”, the CID and the police being instrumentalities of the Sri Lankan government.
[109] CB 340 [40]
[110] CB 341
The Minister submits that there are at least five difficulties with the assertion in paragraph (c) in the particulars to this ground:
a)first, the Authority made no express finding that the Registration of Website Licence (licence) should not be given any weight, unlike, for example, the logo;[111]
b)secondly, contrary to the applicant’s submissions, the irregularities in the licence did not comprise the sole reason why the Authority placed no weight upon it. The Authority also referred to the fact that the licence was in English and that there was no indication that it had been translated,[112] the licence referred to an attached “media ethics document”, when that document was only promulgated by the Ministry in May 2013,[113] and the implausibility of the applicant’s claims regarding the threats made to him and his kidnapping.[114] In these circumstances, it “cannot be argued” that any finding that no weight should be given to the licence was unsupported by any probative evidence, and, therefore, was irrational or illogical;[115]
c)thirdly, the complaint made by the applicant is one that goes to the weight that the Authority placed upon the licence. That was a matter solely for the Authority;[116]
d)fourthly, and in any event, even if the Authority placed no weight on the licence, it was entitled to do so in circumstances where it had found, at [44],[117] the applicant’s claims regarding the website to be “implausible”. Having impugned the applicant’s credibility in that way, the Authority was entitled to place no weight upon the licence; [118] and
e)fifthly, whether the irregularities in the licence are “consistent with details being typed on to a printed form which is consistent with there being a lack of computerised databases” is not to the point; it was open to the Authority to treat those irregularities as adverse to the applicant in the light of the country information, which it cited at [48][119] and relied upon at [52],[120] that indicated a “prevalence of document fraud in Sri Lanka” and that “attempts to use fraudulent documents are common and other asylum destination countries have reported receiving fraudulent documentation from asylum applicants”. The fact that a different conclusion might have been reached does not mean that the Authority’s findings were irrational or illogical.
[111] cf CB 341 [45]
[112] at CB 341 [46]
[113] at CB 341-342 [47]
[114] CB 342-343 [52]
[115] Minister for Immigration v SZMDS (2010) 240 CLR 611 at 648 [131], 649-650 [135] per Crennan and Bell JJ
[116] cf Minister for Immigration v SZJSS (2010) 243 CLR 164 at 176-177 [32]-[36] per French, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ
[117] CB 341
[118] Applicant S20/2002 at 1174 [49] per McHugh and Gummow JJ; WAJQ v Minister for Immigration [2004] FCA 1580 at [20]-[21] per French J (as his Honour then was); Minister for Immigration v SZNSP (2010) 184 FCR 485 at 491-492 [36]-[37] per North and Lander JJ, 493 [50] per Katzmann J
[119] CB 342
[120] CB 342
I accept the Minister’s submissions in relation to Ground 3. While the applicant is trenchantly critical of the Authority’s reasoning, strenuous disagreement does not equate with a finding of legal unreasonableness. It was open to the Authority to find that the applicant was not an independent journalist in circumstances where the Authority found that the applicant had no working experience as a journalist prior to setting up his website, and it rejected the claim that a licence had been issued for the website.
Secondly, read fairly and in context, the Authority in dealing with the claimed threats at [44] was not restricting its consideration to the asserted adverse attention directly from the Sri Lankan government or its agencies, but also extended it to irregular activities undertaken on its behalf. Likewise, in relation to the detention and beating of the applicant, the Authority adopted a broad approach, considering whether the alleged harm might have been perpetrated by or on behalf of the Sri Lankan authorities. The Authority effectively took the applicant’s claims at their broadest.
The Authority, in my view, did use a very keen eye to assess the licence. While one may disagree with that assessment, and even strenuously so, it does not, however, follow that the Authority’s approach was irrational or illogical. It was within the range of possible approaches open to the Authority.
I reject Ground 3.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. He should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 August 2019
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