Fka17 v Minister for Immigration and Border Protection
[2024] FedCFamC2G 113
•14 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FKA17 v Minister for Immigration and Border Protection [2024] FedCFamC2G 113
File number(s): SYG 3827 of 2017 Judgment of: JUDGE D HUMPHREYS Date of judgment: [14 February 2024] Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – Whether the decision of the IAA was implausible, illogical or irrational – Adverse credibility findings Legislation: Migration Act 1958 ( Cth) ss 5J, 5H(1), 36(2)(a), 36(2)(aa), 473CB, 473DD Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FR 539
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
DFY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 169
NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration v Li ( (2013) 297 ALR 225
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of last submission/s: 6 February 2024 Date of hearing: 6 February 2024 Place: Parramatta Counsel for the Applicant: Mr Silva Counsel for the Respondent: Ms Gollan Solicitor for the Respondent: Mills Oakley ORDERS
SYG 3827 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FKA17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Leave is granted for the applicant to file a Further Amended Application with the Court.
2.The first respondent’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The application is dismissed.
4.The Applicant is to pay the First Respondents costs, fixed in the amount of $7700.00.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”), made on 23 November 2017, that affirms the decision of a delegate (“the delegate”) of the Minister for Immigration and Border Protection to refuse the applicant a Safe Haven Enterprise Visa (“SHEV”).
BACKGROUND
The applicant is a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 21 October 2012. On 9 January 2013, the applicant was interviewed by an officer of the Department of Immigration (“arrival interview”) following which he was invited to apply for a Temporary Protection Visa (“TPV”) or a (“SHEV”).
The applicant sought a SHEV on the basis that he feared harm from the Sri Lankan authorities if he were to return to Sri Lanka. Specifically, the applicant feared harm due to the belief that he would be imputed to have a connection with the Liberation Tigers of Tamil Eelam (“LTTE”) and by virtue of his Tamil ethnicity.
The delegate refused to grant the visa on 21 April 2017. The matter was referred to the Authority for merits review. On 23 November 2017, the Authority affirmed the delegate’s decision to refuse the applicant his visa. The applicant now seeks judicial review of the Authority’s decision in this Court.
For the reasons set out below, the application must be dismissed.
THE IMMIGRATON ASSESSMENT AUTHORITY’S DECISION
The Authority’s decision considers the applicant’s refugee assessment and whether he had a well-founded fear of persecution under s 5J of the Migration Act 1958 ( Cth) (“the Act”) and a real risk of significant harm under s 36(2)(a) of the Act.
Paragraphs 1 to 2 of the Authority’s decision provide the background to the applicant’s SHEV application.
Paragraphs 3 to 6 address the review material that the Authority had before it, given by the Secretary under s 473CB of the Act, submissions received on behalf of the applicant addressing the delegate’s decision and findings, along with a transcript of the applicant’s SHEV interview conducted on 31 March 2017. The Authority was not satisfied that the submissions advanced by the applicant’s representative and the provision of new information, regarding the United Nations High Commissioner for Refugees Handbook raised any exceptional circumstances to justify the Authority’s consideration of the information.
Paragraph 7 comprises of the Authority’s summary of the applicant’s claims for protection. They are as follows:
(a) The applicant is of Tamil ethnicity born in Sri Lanka.
(b) The applicant moved to Colombo in 1991 to work in the jewellery trade and only returned to his village on four occasions as the LTTE was recruiting Tamils as members.
(c) In 2002, the applicant moved to Kilinochchi, an LTTE controlled territory where he was required to pay LTTE “taxes”, in order to work for a relative’s jewellery business. The applicant regularly travelled to Colombo for business and claims he was questioned by the LTTE and placed in cages where he would be beaten, as often as twice per month. Specifically, the applicant claims he was beaten with the leg of a chair, resulting in fracture to his finger and another occasion where his knees were injured because of a similar beating.
(d) In 2004, the applicant was questioned about his place of residence in Colombo. He claims that he was taken from this residence by the Criminal Investigation Division (“CID”) and held by them for two days whilst being questioned and tortured before he was released on account of his father and cousin communicating with the CID.
(e) The applicant was married in 2005. His wife lived in an army-controlled area in Trincomalee whilst he travelled between an LTTE controlled area where he worked and Trincomalee. The applicant claims this travel attracted the attention of the CID. Additionally, a house owned by the applicant’s sister was occupied by the LTTE.
(f) He paid money to the LTTE to avoid being recruited. He evaded recruitment by the LTTE in 2005. In 2007 the applicant claims he was required to participate in civil defence training for a few days when he visited Batticaloa.
(g) In March of 2007, he visited Batticaloa and due to fighting in the area, he was displaced. He spent two months in a UN refugee camp.
(h) On 12 April 2009, the applicant claims unknown masked men entered his wife’s family home in Trincomalee and threatened him. He was accused by the masked men of helping the LTTE. They proceeded to ask the applicant for money and threatened to bomb the house. The applicant informed them that he would pay the money the following day.
(i) At the SHEV interview, the applicant stated that the unknown men from the 12 April 2009 incident were part of the Karuna group, that worked together with the army and CID.
(j) On the following day he went to the police and reported the incident. The applicant claims two officers from the army attended the wife’s family home asking questions about the incident and demanding money. The applicant recognised the officers as being the men involved in the incident from the previous day.
(k) The applicant’s wife went into hiding for around 45 days before returning to her family home. During this time the applicant applied for a passport and made arrangements to obtain his visa to travel to Saudi Arabia in or around June 2009.
(l) In 2011, the applicant’s father was killed by an army vehicle. The applicant stated he could not leave work to attend the funeral. The applicant’s family was warned against making official complaints about the father’s death.
(m) In April 2012, the applicant returned to Sri Lanka. He received a letter from the army requiring him to report. He was questioned by the army about his travel to and from Colombo and Trincomalee, and the whereabouts of family members allegedly linked with the LTTE. He was called again for questioning by the army and despite being accompanied by his family, they were made to leave. On this occasion he was beaten during questioning.
(n) In May 2012, the applicant received letters requiring him to report for further questioning. The applicant proceeded to go into hiding.
(o) The applicant worked as a fisherman with his father-in-law. It was around this time he experienced problems with the CID.
(p) The applicant was urged by his wife to lodge complaints with the police about the CID. There is an English translation of an extract from an Information Book of Eravur, dated 3 September 2012, stating that the applicant had received threats from unidentified persons before his travel to Saudi Arabia. At the SHEV interview, the applicant explained that the report’s reference to unidentified person is due to the Sri Lankan police’s reluctance to register a complaint against the CID.
(q) The applicant departed Sri Lanka illegally in October 2012.
(r) The applicant’s wife was subsequently visited by the army twice to ask questions about him.
(s) The applicant claims he is fearful of Sri Lankan authorities upon his return to Sri Lanka as he may be imputed as having a connection with the LTTE. The applicant fears that because he has mentioned the harassment he faced from the CID in his asylum claims, this can be regarded as cause for the army to subject him to harm.
(t) The applicant indicated he is aware of reports concerning incidents of arrest and harm exhibited towards Tamils and provided media articles to that effect. He claimed that many of his family members have fled from Sri Lanka for their safety. He stated that his sisters and one brother are in Canada, one of his brothers is in Australia, where he has applied for protection and currently another brother is missing. The applicant has submitted documents from the Red Cross Tracing Service who tried unsuccessfully to locate his brother.
(u) The applicant provided a statement from a Member of Parliament in the Batticaloa District stating that the applicant has been threatened by unknown persons and has left Sri Lanka for his safety.
(v) The applicant has received trauma assessment and treatment in Australia. Reports from these assessments detail the applicant’s grief over his missing brother, familial separation, and traumatic history because of past experiences of discrimination and persecution.
Paragraphs 8 to 28 of the decision are the Authority’s factual findings as to the applicant’s claims. At paragraphs 8 and 9 the Authority accepted claims about the applicant's identity and accepted that Sri Lanka is the receiving country for the review. The Authority accepted that the applicant lived in LTTE controlled areas and paid money to the group to avoid recruitment. The Authority accepted that the applicant travelled in and out of LTTE and government-controlled areas and that the LTTE occupied his sister’s home.
At paragraph 10, the Authority noted concerns about the applicant’s claim of escaping LTTE forced recruitment in 2005, as country information advised that during that period there was a ceasefire and reports of forced recruitment only followed in 2006. The applicant did not satisfy the Authority about his claim of evading a kidnapping attempt in 2005 as accounts of kidnap mainly related to periods of intense fighting in the country, particularly towards the end of the war. Thus, the Authority believed the applicant’s account was embellished. The Authority accepted the applicant’s claim about pushing an LTTE member away from him whilst visiting the temple during an LTTE recruitment campaign.
At paragraph 11, the Authority accepted that the applicant did undertake training for a few days in 2007 as this was supported with country information and remains consistent with claims the applicant made in his arrival interview.
At paragraphs 12-15, the Authority makes a number of findings as to the applicant’s claims, as follows:
[12] I accept that the applicant was displaced for two months in 2007 due to fighting.
[13] I accept that the applicant departed Sri Lanka illegally in October 2012 and has claimed asylum.
[14] I accept that his siblings have all departed Sri Lanka and that one of his brothers went missing while attempting to travel to Australia.
[15] I accept the applicant has been receiving treatment in Australia for trauma.
At paragraph 16, the Authority accepted that the applicant often travelled for business purposes to and from Colombo to the east and north of Sri Lanka where he often encountered checkpoints and was scrutinised due to his Tamil ethnicity as this is supported by country information. The Authority took issue with the applicant’s claim that he was held in a cage, but, accepted that checkpoints may have had barricades and barbed wire. As such he may have been held in a fenced off area. The Authority noted that, although the applicant was scrutinised at checkpoints for his regular travel, the evidence did not indicate that he was prevented from travelling. It noted that there were accounts of civilian abuse. It was plausible that the applicant was mistreated by soldiers at checkpoints. The Authority, however, found it difficult to reconcile the applicant’s claims about the extent of abuse he received, and the treatment he received. It was not satisfied he had a profile of concern that would have resulted in being beaten as often as he claimed.
The Authority noted the inconsistencies with the information provided by the applicant and the country information of that time. The Authority noted that the applicant continued to work but reduced his travel. However, it was not satisfied that, despite low employment opportunities, the applicant would have continued to travel as frequently if he was being beaten as much as he claimed.
At paragraph 17, the Authority found that although it held concerns, that the applicant was mistreated on some occasions by the army at checkpoints. The Authority accepted that the applicant, on two occasions, was hit with a chair leg resulting in injuries, but failed to accept the applicant’s claim that these beatings occurred twice per month.
At paragraph 18 of the decision, the Authority accepted that the applicant was asked to provide his address to Sri Lankan authorities and that the police or CID visited him at his residence in Colombo. The Authority relied on information from LandInfo about police requiring information about Tamil household members and visitors and conducting checks. The Authority rejected claims by the applicant that he was arrested and held by the CID in 2004 for two days where he were subject to questioning and torture, as that account significantly varies from the evidence provided at his arrival interview when the applicant was asked if he had ever been arrested. He did not mention the 2004 incident. The Authority was unconvinced by the applicant’s account of the 2004 incident at the SHEV interview and that, although the CID did not believe that he was not linked to the LTTE, they still released him. There is no evidence they attempted to question or detain him further on that basis.
The Authority, at paragraph 19, rejected the claim made by the applicant about the incident on 12 April 2009 where unknown masked men threatened him at his wife’s home about his LTTE links. The applicant’s passport was issued on 2 March 2009, indicating that the applicant had prior intentions to travel and could not have been so fearful of harm after the 12 April incident as he had already applied for a passport to leave the country.
At paragraphs 20 to 21, the Authority noted inconsistencies with what the applicant claimed happened the day after the 12 April 2009 incident and found this account to be unconvincing. This was based on the applicant being issued with his passport one month prior to the claimed incident that prompted his decision to leave Sri Lanka. The Authority considered his account of the follow up incident the next day was implausible. The Authority noted this cast doubt on the truthfulness of those accounts and suggested he would not have been a person of interest to the authorities or the Karuna group.
At paragraph 22, the Authority noted inconsistencies surrounding the period between the claimed incidents and the applicant’s departure from Sri Lanka in June 2009. He claimed he stayed above his shop in Trincomalee in a high security zone, and he was able to travel to Colombo in April 2009 to be issued a passport. The Authority noted that the applicant’s ability to live at the shop undetected and travel to and from Colombo was inconsistent with his claim that he was a person of interest with authorities. As such, the Authority did not accept that he was imputed with an LTTE profile or profile of concern and that he was threatened, accused of being linked to the LTTE or they demanded money from in April 2009.
At paragraph 23, the Authority rejects the applicant’s claim surrounding his father’s death in 2011 on account of the inconsistencies provided in the arrival interview around the death. It concluded that the claim was fabricated to enhance the applicant’s protection claims.
Paragraphs 24 to 27 of the Authority’s decision deal with issues related to the applicant’s return to Sri Lanka in April 2012. The Authority noted that it accepts that the applicant was called for questioning after his return, due to available country information surrounding a known practice by local authorities requiring Tamils returning from overseas to register with them. However, the Authority rejected that the applicant was called for further questioning after that incident, or that he was beaten and received a further letter advising him to report in May 2012.
The Authority placed significant weight on the applicant’s ability to re-enter Sri Lanka without difficulty as it belies the adverse interest that the applicant claimed the authorities had in him. The Authority noted that, from the available country information, had the authorities any interest in him, they would have relied on their powers under the Prevention of Terrorism Act to detain him.
The Authority concluded at paragraph 25 that the applicant could not have been in hiding at the places he identified, namely his father-in-law and mother’s house, as it found that the Sri Lankan authorities could have located him. Further, the Authority did not accept the applicant’s claims that the authorities spoke to his mother or questioned any neighbours.
At paragraph 26, the Authority noted that the claims surrounding the harassment perpetrated by the CID in and around 2012 were difficult to accept as, if the applicant had been a person of interest, the CID would have detained him. The applicant’s claims that he was in hiding from May 2012 to October 2012 were found to be implausible by the Authority.
The Authority concludes in paragraphs 27 and 28 that a number of claims by the applicant were fabricated to enhance his protection claims.
Accordingly, the Authority found that the applicant did not meet the requirements of a refugee under s 5H (1) or s 36(2)(a) of the Act.
Paragraphs 46 to 51 of the Authority’s decision deal with complementary protection considerations. For the same reasons, the Authority concluded that the applicant did not meet the criteria under s 36(2) (aa) of the Act.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in a Further Amended Application. Leave was granted to file the application in Court. The grounds are as follows verbatim (less particulars):
Ground 1: The Authority made jurisdictional error in that it made a critical adverse finding against the applicant about the kidnapping in 2005, which were not open and/or unreasonable because it was (i) based on its misunderstanding of the Country Information and (ii) made despite the fact that the Authority was aware that during the interview the delegate did not raise any question about the evidence given about this
Ground 2: The Authority committed jurisdictional error since it made another adverse credibility finding against the applicant about the incidents in 2012, which was not open and/or unreasonable, because the Authority (a) used a flawed process or credibility assessment where it left out the critical evidence given by the applicant at the arrival interview, and (b) based its finding, on its misunderstanding of yet another country information.
Ground 3: The Authority committed jurisdictional error since it used a flawed credibility assessment process in dealing with the extortion incident in 2009, which it found did not take place.
Ground 4: The Authority made jurisdictional error in that it failed to consider in its deliberations the part that was titled “Legal issue on well-founded fear” in the representatives’ submission dated 17 May 2017.
Ground 5: The Authority committed jurisdictional error, because it has made a number of factual findings not legally sustainable and a legal finding that s infected by error that together make the errors grave enough to constitute jurisdictional error.
The Court notes the particulars for this ground include a purported error under
s 473DD of the Act, however this is not expanded on.
THE EVIDENCE
In addition to the Court book, the applicant relied upon three Affidavits. The first attaches the transcript of the delegate’s interview with the applicant. The second Affidavit contains six pages extracted from the report of the OHCHR Investigation on Sri Lanka dated 16 September 2015 (“the Report”). The third contains a 42-page report from the UN High Commissioner for Refugees “UNHCR Eligibility Guidelines for Assessing the International Protection needs of Asylum Seekers from Sri Lanka’ dated 21 December 2012.
GROUND ONE
Counsel for the applicant submitted that the Authority’s decision was marred with jurisdictional error given that its findings against the applicant are based on the misunderstanding of available country information, being the Report. The Authority considered that the applicant embellished his account of escaping LTTE forced recruitment in 2005 due to the Report that advised the LTTE only engaged in forced recruitment from 2006. The applicant submits that this factual finding is inconsistent with the information within the report which provides that the LTTE was involved in forced recruitment before 2006. Counsel for the applicant relies on the statement made on page 129 of the Report as follows:
[637] Following the resumption of hostilities in 2006, fewer people were willing to join the LTTE, and the organization turned increasingly to forced recruitment. Although the CFA explicitly prohibited the abduction, harassment and intimidation of civilians, the SLMM received 1,248 complaints of abductions of adults between 2002 and 2007, most of which related to recruitment……………… (emphasis added)
Counsel for the applicant submits that the Authority erred in finding that the applicant embellished his account of forced recruitment by the LTTE in 2005 and in its making of an adverse credibility finding against the applicant based on an error. Accordingly jurisdictional error is made out. Counsel further submits that the delegate did not raise an issue with the applicant at the SHEV interview and submits that the finding by the Authority was irrational, illogical and legally unreasonable, relying upon Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611(“SZMDS”) at [78] and [130-131].
On behalf of the respondent, it was submitted that the applicant has mischaracterised the Authority’s findings. It did not find the LTTE only resorted to kidnappings following the resumption of hostilities in 2006. Rather, forced recruitment increased after the resumption of hostilities in 2006. Thus, the findings were not factually wrong. It was clearly open to the Authority to find that the applicant had ‘embellished’ his account of escaping and open to it to find that the applicant ‘pushed an LTTE member away’ in 2005.
The claim in the particulars that the delegate did not question the applicant about this account, “as if he was accepting it as truthful” does not support a finding of jurisdictional error, noting that the Authority is not bound to accept the delegate’s factual findings.
It was submitted that the suggestion that this finding is irrational, illogical, and legally unreasonable should be rejected noting the very high threshold for such a finding: (see; SZMDS at [135]).
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: (see; Minister for Immigration v Li ( (2013) 297 ALR 225 (“Li”) at [28]) , or where a decision has been made that lacks an “evident and intelligible justification”(see; Li at [76]). The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: (see; Li at [30], [113]).
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
[11] The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
In SZMDS, the Court concluded at [131] that it was insufficient the different minds might reach different conclusions in a jurisdictional fact and that the test for illogicality or irrationality:
[131] … Must be to ask whether logical or rational reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by reviewing court to be a logical or irrational or unreasonable simply because the conclusion that has been preferred to another possible conclusion.
Further, it is well settled that the country information and the weight it gives to that information is a matter for the Authority: (see; NAHI v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCAFC 10).
First, the Court is satisfied that the Authority did not make a factual error at paragraph 10 of its decision when it dealt with country information regarding kidnappings by the LTTE. The country information indicated there were kidnappings prior to 2006 and the Authority accurately reflected this in its decision. Accordingly, it was open to the Authority to find that the applicant had ‘embellished’ his account.
The fact that the delegate did not question the applicant about his account is not a matter that points to jurisdictional error. The Authority was not bound to accept the factual conclusions of the delegate and was required to make its own findings of fact.
The Court is satisfied that it was open to the Authority, based on the evidence before it and for the reasons it gave, to come to the conclusion it did regarding the applicant’s account. That conclusion does not meet the stringent threshold of legal unreasonableness. Nor is the conclusion illogical or irrational.
The Court has also considered carefully the adverse credit finding in this and the other grounds. The Court is conscious that credit findings are non-linear in nature and considerable care needs to be exercised when looking at conclusions based on credit findings. In this matter the Court is satisfied that the conclusions in relation to ground one and the other grounds were reasonably open to the Authority.
Ground one has no merit.
GROUND TWO
Ground two is an assertion of jurisdictional error relating to the adverse credit finding about the applicant’s account of events in 2012. Issue is taken with the findings of the Authority at paragraph 24 relating to being questioned by authorities. The Authority accepted that the applicant was called for questioning after returning from Saudi Arabia in April 2012. It did not accept that he was called in for questioning subsequently and was beaten. The Authority noted that the applicant entered Sri Lanka without difficulty. At the time of his entry into Sri Lanka the applicant was not detained beyond routine checking. The Authority reasoned if the applicant was of interest to authorities he would have been detained at the airport.
The applicant submitted that the Authority did not refer to critical information given in his arrival interview where he claimed that when he first arrived in Sri Lanka in 2012, he was ‘threatened, asked for money and they’re trying to shoot me’. It was submitted that the Authority also ignored the claim that he was later called in for questioning and this questioning was not routine.
The respondent submitted that the fact that a particular section of evidence was not quoted, does not demonstrate that the Authority ignored this evidence. Reliance was placed on DFY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 169 at [28] where the following was said per Gleeson J:
[28] The requirement that a decision maker give proper, genuine and realistic consideration to the matters he or she is required to consider does not require the decision maker to refer in reasons to every piece of evidence and contention made’.
In oral submissions, Counsel for the respondent submitted that ground two consisted of a very detailed examination of individual sentences within the impugned paragraph. Rather, the paragraph needed to be read as a whole. If anything, the ground amounted to vehement disagreement with the conclusions arrived at by the Authority and invited impermissible merits review.
The Court is not satisfied that the claims made by the applicant in the arrival interview were overlooked. There are numerous references to them and the interview with the delegate in the decision. Some, however, are not specifically reproduced in the decision. This does not mean they have not been taken into account.
The Court is satisfied that the conclusion that the applicant was initially questioned but then released was open to the Authority based on the country information available to it. It was also open to the Authority to find that the fact the applicant was not detained at the airport upon his return or upon his initial questioning, supported a conclusion that the applicant was not of interest to the authorities and as a result was not of interest to them. Such a finding supported the conclusion that the applicant was not beaten in a subsequent interview as claimed.
The Court is not satisfied that these findings reach the stringent threshold for legal unreasonableness or that the reasoning process was so flawed as to be illogical or irrational. The fact that a different Authority, using a different reasoning process, may have come to a different conclusion is insufficient for the Court to conclude that the outcome is infected by jurisdictional error. If anything, ground two constitutes an attempt to engage the Court in impermissible merits review.
Ground two has no merit.
GROUND THREE
Ground three is an allegation as to a flawed credibility assessment in dealing with the claimed extortion incident in 2009. The Authority found that the incident did not take place. It was submitted that: firstly, the Authority failed to consider the evidence given by the applicant at the arrival interview about the 2009 incident. He stated that “in 2009, the people that asked me for money was the Karuna group and then it was the CID and they both jointly threatening me”. This was consistent with latter evidence.
Second, the applicant gave detailed evidence to the delegate about this incident. The delegate did not tell the applicant that any part of that needed further clarification or there were any credibility issues about that evidence.
Third, it was submitted that, the finding that the incident was implausible, was unreasonable on the part of the Authority. Reliance was placed on W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 where the Full Court of the Federal Court stated at [67]:
[67] Where the question of credibility is determinative of the Tribunal decision, to simply assert that the tribunal considers the applicants account to be “implausible” or “highly unusual” does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed in clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.
It was submitted that the Tribunal’s finding was unreasonable as it did not provide a rational reason for its implausibility finding. It was submitted that an administrative decision will be jurisdictionally infirm if it relies on a finding of fact that has no rational support or that is made in the face of evidence that could only rationally result in a different finding.
The respondent submitted that the issue was comprehensively dealt with by the Authority at [19] - [20] where the following was said:
[19] For the following reasons I do not accept that the claim that on 12 April 2009 the applicant was threatened at his wife’s home by the known mast men from the Karuna group, or others, who accused him of having LTTE links, nor that he reported this incident to the police and that the next night two men came to the house again to ask about the incident. The applicant stated that after these incidents he was fearful of harm from the people who threatened him and the authorities and he decided to apply for a passport to leave the country. However the copy of the applicant’s passport provided with his SHEV application shows that this was issued on 2 March 2009, more than one month before the incident in April which the applicant stated prompted his decision to leave Sri Lanka. The indications are that the applicant had some intention of travelling prior to the claimed events, bringing into doubt his claim that he was threatened in April 2009, leading him to make arrangements to leave Sri Lanka.
[20] I also find his account of the incident on the next day to be unconvincing. The applicant stated that he told the masked men on 12 April 2009 he would pay them the money the next day. I consider it implausible that the applicant had been threatened with a rifle by armed men who threatened to bomb the house if you did not pay, yet when he did not pay they came back again as army officers to ask about the incident and did not make any threats, asked again for money, which she still did not pay and yet the applicant was not taken by them or mistreated by them was able to return to his shop the next day (emphasis added)
The applicant submitted that the findings by the Authority in these passages are infected with jurisdictional error on the basis that the Authority “failed to consider critical evidence that the applicant gave in his arrival interview” when he told the interviewer “In 2009 the people that asked for money was the Karuna group, then it was the CID and they both jointly were threatening me”. However, the Authority did refer to the evidence given by the applicant as his arrival interview throughout the Authority’s decision. The fact that the Authority did not specifically refer to this particular piece of evidence does not demonstrate a failure to consider the evidence as the Authority is not required to “refer in reasons to every piece of evidence and every contention made”.
It was further submitted that it was unreasonable to find that the incident was implausible, because it was a perfectly plausible scenario. This submission must be rejected, as it constitutes an impermissible attempt to engage in merits review of the decision of the Authority.
In DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87]-[88], it was explained that “questions of weight per se are not amenable to judicial review” and that, the Authority is “not obliged to uncritically accept evidence or submission made by the applicant”.
It is well established that the Authority is not required to accept uncritically any, and all claims made by an applicant:(see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out (see; Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348]).
It is for the applicant to satisfy the Tribunal Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
Reasons of a Tribunal or the Authority are not to be scrutinised “with an eye finely attuned to error”. It is plainly not necessary for the Tribunal or Authority to refer to every piece of evidence and every contention made by an applicant in its written reasons. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law: (see; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FR 539 (“Applicant WAEE”) at [46]). Further at [47] in Applicant WAEE, the Court said as follows:
[47] The inference the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings a greater generality or because there was a factual premise upon which a contention arrests that has been rejected. Where, however, there was an issue raised by the evidence advanced behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegates decision, a failure to deal with that in the published reasons may raise a strong inference that has been overlooked.
The Court is satisfied that the Authority found that the claim by the applicant was implausible for the reasons it set out, which are highlighted above. These were rational reasons based on supporting evidence in relation to the timing of the application for the passport. The reasons were far more than a general passing comment, or a general impression made in relation to the evidence supporting a finding that the claim was implausible. The claim that there were no reasons for the implausible finding must be rejected. The reasons were detailed and comprehensive.
The Court is satisfied that the Authority was reasonably entitled to come to the conclusion that it did based on the evidence before it and for the reasons it gave.
Ground three has no merit.
GROUND FOUR
In relation to ground four, the applicant contends that the Authority committed jurisdictional error by refusing to consider the legal submissions submitted by the applicant’s representative on 17 May 2017, which are claimed to be critical to the applicant’s case. The applicant contends that the criteria used by the Authority to consider these legal submissions are taken from the provisions of s 473DD of the Act as follows:
"For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
i.was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
ii.is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims."
(emphasis added)
The applicant notes that the Authority did not explicitly state that it refused to use the provisions of s 473DD of the Act in its consideration of the submissions and with reference to the legal submissions, the Authority held that:
“With the exception of the UNHCR Handbook this information was not before the delegate and is new information. There is no information before me to explain why the above information could not have been made available to the Minister or that it contains credible personal information…….”.
The respondent submitted that the ground must be rejected as it proceeds from a misunderstanding of the Authority’s decision at [3]- [6]. The ‘Legal issue on well-founded fear” section of the representative’s submissions contained submissions as to three “legal issues” regarding whether the applicant had a well-founded fear and the alleged errors in the delegate’s approach. The Authority stated that it had regard to this part of the submissions at [6] where it said:
[6] “I have had regard to the representative’s comments regarding the delegate’s decision and findings and the claimed misunderstanding and I am satisfied this is essentially argument about matters that were before the department and therefore not new information and I have had regard to the sections of the submission that address the decisions and findings”. (emphasis added)
A fair reading of the entirety of [3] – [6] clearly indicates that the Authority accepted and considered the matters claimed as ‘legal issues’. Thus, there was no requirement to consider the applicability of s 473DD of the Act.
Ground four has no merit.
GROUND FIVE
The applicant submitted that if the errors committed in Grounds 1-4 were not found to be sufficient to constitute jurisdictional error on their own, when combined they become grave enough to constitute jurisdictional error.
The Authority is not required to conduct this kind of cumulative assessment in any event. In Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 (“DDK16”) the Full Court at [34] stated:
[34] as a matter of inexorable logic…[if] all individual claims or basis for establishing entitlement to a visa are dismissed (here, dismissed is not giving rise [to] a real of significant risk of harm upon returning to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result.
The above relates to claims by an applicant. In my view the same logic must apply to grounds of judicial review. No amount of cumulative consideration of rejected grounds will produce a different result. Each ground either stands or falls on its individual merit.
Given each of Grounds one to four have been found to have merit, ground five must also be dismissed.
CONCLUSION
As none of the grounds of judicial review have merit, the application must be dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 14 February 2024
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