FLR17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 81
•29 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FLR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 81
File number: SYG 3874 of 2017 Judgment of: JUDGE D HUMPHREYS Date of judgment: 29 January 2025 Catchwords: MIGRATION - Immigration Assessment Authority - Safe Haven Enterprise (class XE) (subclass 790) visa – Whether the Authority failed to give proper and genuine consideration to the applicant’s evidence Legislation: Migration Act 1958 (Cth) ss 65 473CC 473CB, 473DD(b) 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
BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
BHW16 v Minister for Immigration and Border Protection (2019) 168 ALD 463
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
EKN17 v Minister for Immigration and Border Protection [2019] FCA 1135
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
NABE v Minister for Immigration and Indigenous Affairs (No 2) (2004) 144 FCR 1
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Singh v Minister for Home Affairs [2019] FCAFC 3
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449
W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 432
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 20 January 2025 Place: Parramatta Counsel for the Applicant: Ms McNeil Solicitor for the Applicant: Mr T.Selliah ( Rasan T. Selliah & Associates) Solicitor for the First Respondent: Ms Ren (HWL Ebsworth) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3874 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FLR17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
29 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration, and Multicultural Affairs’.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,328.00.
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 by the Immigration Assessment Authority (“Authority”) on 30 November 2017. The Authority affirmed a decision made on 23 March 2017 by a delegate of the Minister for Immigration and Border Protection (“delegate”) to refuse to grant the applicant a Safe Haven Enterprise (class XE) (subclass 790) visa (“SHEV”).
For the reasons outlined below, the application must be dismissed.
BACKGROUND
The applicant is a male citizen of Sri Lanka. He arrived in Australia on 17 April 2013 as an unauthorised maritime arrival.
On 25 May 2013, the applicant participated in an “Irregular Maritime Arrival Entry Interview”.
In a letter dated 18 May 2016, the applicant was informed the Minister had lifted a s 46A bar and invited the applicant to apply for either a Temporary Protection (subclass 785) visa or a SHEV.
On 20 December 2016 he lodged an application for the SHEV. He received a letter from the Department of Immigration and Border Protection dated 18 January 2017 acknowledging receipt of a valid application and requesting further information.
The applicant attended a protection visa interview on 24 February 2017. He was accompanied by his Migration Agent and assisted by an interpreter who spoke Tamil and English. The applicant’s Migration Agent provided submissions following the interview with three supporting documents attached on 9 March 2017.
On 23 March 2017, the delegate refused to grant the applicant the SHEV under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The refusal decision was referred to the Authority for merits review under s 473CC of the Act on 28 March 2017.
The applicant provided written submissions dated 21 April 2017 through a solicitor who was also a registered Migration Agent.
In a letter dated 2 May 2017, the Authority wrote to the applicant requesting the provision of an identified source and either a copy (in full or extracted) of reports the applicant sought to rely on but had not specified in his submissions. Copies of additional documents the applicant referenced were also requested.
On 7 May 2017, the applicant responded through the aforementioned solicitor who again stated he did not intend to represent the applicant but was rather responding to the Authority’s letter. The solicitor sent two emails; the first attaching the documents referred to in the submissions of 21 April 2017, and the second attaching further submissions dated 7 May 2017.
The Authority affirmed the decision not to grant the applicant a SHEV on 30 November 2017.
In December 2017, the applicant applied to the Federal Circuit Court as it was then, for judicial review of the Authority’s decision.
IMMIGRATION ASSESSMENT AUTHORITY DECISION
The Authority had regard to the material provided by the Secretary under s 473CB of the Act as stated at [2].
The submissions dated 21 April 2017 contained two new claims and sources of country information which were not before the delegate and constituted new information. The Authority was not satisfied at [7] and [8] that exceptional circumstances existed to justify consideration of the new information. With respect to the country information, the Authority was not satisfied as to either of the matters in s 473DD(b).
The applicant’s claims were summarised at [9] as follows:
•In 1989 the applicant was born in Jaffna, Northern Province.
•In 1994 the Sri Lankan Army (SLA) shelled and destroyed a bicycle store, owned by the applicant’s father, during one of their operations.
•The applicant and his family were at times displaced by the ongoing civil war, and in early 2006 a state of emergency was declared in their home area. The Sri Lankan authorities imposed a curfew, and the applicant was unable to continue his studies.
•In 2007 the applicant moved to Trincomalee to work in a fruit shop owned by his father’s friend, Mr K.
•In late 2008/09 as the final stages of the war intensified, the SLA started detaining young Tamil men who were found living outside their home area.
•On 19 January 2009 the applicant was at work when the Criminal Investigation Department (CID) came into the shop and detained him on suspicion he was a Liberation Tigers of Tamil Eelam (LTTE) member and seriously mistreated for ten days. During this period the CID told the applicant they had found weapons in the shop, and continued to torture him for details about LTTE members, and the location of other hidden weapons. The applicant denied the charges.
•A few days later the CID told him that he would have to appear before a judge and then the Terrorist Investigation Division (CID) would take over his case. The judge gave the authorities permission to continue the applicant’s detention.
•The applicant was taken to Colombo in a CID vehicle and tortured along the way. In Colombo he was held with around 80 other Tamil political detainees, and continuously questioned and tortured.
•Six days later the applicant was taken to the Boosa interrogation centre in Galle, where CID officers regularly tortured and interrogated him.
•Five months later the applicant was brought before the Colombo Magistrate’s Court where the CID asked for an extension to his detention on national security grounds; specifically for being in possession of two hand grenades and aiding LTTE members. The judge gave the CID permission under the Prevention of Terrorism Act (PTA) to continue the applicant’s detention.
•The applicant was held in Colombo prison until May 2010 and then transferred back to Trincomalee, where he discovered Mr K was also detained. They both attended the local court in relation to charges of weapons possession and supporting the LTTE.
•The applicant’s parents hired a lawyer who appealed to the High Court in Colombo. On 3 June 2011 the applicant paid 50,000 rupees bail and was released on the condition he attended the hearing of his case in Trincomalee every three months, and regularly inform the authorities of his movements.
•In October 2012 two CID officers came to the shop where the applicant worked in Jaffna and told him they were aware of his past detention. They accused him of participating in an LTTE remembrance day in May 2012, and of planning to participate in another LTTE remembrance day the following month. They also wanted information about any LTTE activity in the area. The applicant denied all the allegations.
•The CID took down the applicant’s phone number and warned him he would be abducted if he did not assist with the information they wanted.
•The applicant relocated to Batticaloa. Three days after leaving Jaffna the CID came to his home there to enquire about him. Once the November 2012 remembrance day had passed the applicant wanted to return to Jaffna, but was advised the situation had not improved and that he should not return.
•The applicant had a court hearing scheduled for March 2013, which he attended and noticed two men following him. The applicant managed to evade them and return to Batticaloa.
•In March 2013 the applicant departed Sri Lanka illegally by boat and missed his next court scheduled for June 2013.
•The applicant fears the Sri Lankan authorities will detain, interrogate, torture or kill him because of: his status as a young Tamil male from the north and east; his criminal record and imputed LTTE support; and his illegal departure from Sri Lanka in 2013, in breach of his bail conditions.
The Authority instructed itself as to the criteria for a refugee assessment from [10] – [11].
It was satisfied at [12] of the applicant’s claimed identity and that Sri Lanka was the relevant receiving county for the purposes of assessment.
From [14] – [20] the Authority accepted the following claims made by the applicant:
·The applicant and his family’s experiences during the Sri Lankan civil war.
·In 2007 the applicant relocated to Trincomalee due to the ongoing difficulties of living in Jaffna as a young Tamil male. He worked in a fruit shop owned by Mr K.
·In late 2008/2009 the Sri Lanakan authorities started to detain young men in the north and east of Sri Lanka who were outside of their home area.
·In January 2009 the CID conducted an operation in the vicinity of the fruit ship where the applicant worked and detained him.
·The applicant was informed that weapons had been found in the fruit shop. He was interrogated about his knowledge of the LTTE in his area and was seriously mistreated in the manner claimed for ten days.
·The CID took over the applicant’s case. He was transferred to Colombo where he continued to be interrogated and seriously mistreated while in custody.
·A ‘detention order’ issued by the Defence Ministry under Regulation 19(1) relates to the applicant’s initial transfer to Colombo in around early March 2009.
·After six days in Colombo, the applicant was transferred to the Boosa detention centre in Galle. Every few months CID officer would question him regarding his suspected LTTE links and seriously mistreat him.
·Five months later, the CID brought the applicant before a court in Colombo to apply for an extension to his detention under the PTA, as claimed and it was granted.
·The applicant was sent back to Colombo prison until May 2010, when he was then transferred to Trincomalee where Mr K was being held.
·Mr K and the applicant were brought before the local court in Trincomalee for the charges of weapons possession, and providing support to the LTTE to be heard.
·The applicant’s parents hired a lawyer. On 3 June 2011 the applicant was released and returned to Jaffna.
·The applicant resided in Jaffna without incident for over a year.
The Authority considered the following events plausible on the evidence at [20]:
·In January 2009 after weapons were found in the shop where the applicant worked, he was detained and held under the PTA.
·The applicant’s detention was continually extended until May 2010.
·The applicant was then transferred back to Trincomalee where the charges were to be heard.
·In June 2001 the applicant was released and returned to Jaffna.
However, the Authority had concerns about the circumstances under which the applicant was released in Jaffna in June 2011, particularly that there were bail conditions attached.
At [21] the Authority did not consider it credible that in October 2012, more than a year after the applicant’s release, purportedly on bail, the Jaffna CID came to his workplace and took him to a less public location, where they accused him of participating in an LTTE remembrance day which had taken place in May 2012.
At [23] the Authority did not consider it plausible that if the Jaffna CID wanted to question the applicant, that would be concerned about returning him to his workplace afterwards for the sake of appearances. It also considered it implausible that the Jaffna CID would suddenly develop an interest in the applicant for more than a year after his release from jail.
At [26], the Authority did not consider it credible that if the applicant was hiding because he was a wanted person in Jaffna, he would have had his marriage registered with the authorities in Batticaloa. On the evidence before it, the Authority did not consider the applicant had been forthcoming in his reasons for spending the last six months prior to his departure in Batticaloa. It did not accept that he was in hiding during this period.
At [27], the Authority did not consider it credible that the amount for each individual who signed as guarantors for the applicant’s purported release on bail in June 2011 doubled to 100,000 rupees as compared to the applicant’s original claimed bail of 50,000 rupees. The Authority also noted the claim was not contained in the applicant’s written SHEV statement.
At [29], the Authority considered the claim, that the applicant continued to attend his court hearings every three months up until March 2013 until he noticed two men following him afterwards, to contradict his evidence to the delegate that he was in hiding, and unable to leave the house at this time.
Overall, the Authority did not consider it credible that if there was a warrant pending for the applicant’s arrest from 27 November 2011, he would have been able to live and work in Jaffna, and that the CID there would not have known about this warrant when they purportedly questioned him October 2012[30]. Given the circumstances, it placed no weight on the arrest warrant.
The Authority observed at [31] the explanations provided by the applicant did not alleviate concerns that the only credible evidence the applicant provided with regard to his protracted history in the Sri Lankan criminal justice system was a sole detention order from 2009.
For a number of reasons, the Authority did not accept the applicant provided a convincing explanation for the lack of corroborating documentary evidence at [32] regarding the applicant’s Court case.
As the CID are a part of the Sri Lankan criminal justice system, the Authority did not consider it credible at [33] that the applicant’s parents would lodge a complaint with the police about the CID, or people working for the CID, harassing and threatening them. For these reasons, the Authority placed no weight on a letter from the village administrative office dated 3 March 2012 as corroborative evidence of the applicant’s claims.
Despite concerns about aspects of the applicant’s evidence, the Authority was prepared to accept at [34] that in 2009 the applicant was wrongly accused of LTTE involvement because the owner of a shop where he worked had hidden two grenades on the premises. It also accepted that he was imprisoned for over two years and was seriously mistreated.
However, given the lack of credible corroborating evidence and inconsistencies noted, the Authority did not accept at [34] the applicant was only released in June 2011 after having paid bail, or that the case against him was ongoing. Rather, it considered that any charges against the applicant were ultimately dropped, no convictions were recorded and that his release in June 2011 was unconditional. It did not accept that the authorities in Trincomalee warned the applicant he was being monitored, to report to them regularly and inform them of his movements, noting the applicant returned to live and work in Jaffna.
It also considered at [35] the applicant had not presented any convincing reasons as to why the Jaffna CID would take up an interest in him more than a year after his release from custody and after the applicant’s consistently stated he has never had any LTTE links. There were no credible reasons before the Authority to support the applicant’s claim that they would accuse him of attending LTTE remembrance events, if he had not done so.
It did not accept that the applicant had:
·any further interactions with the authorities after his release from jail on 3 June 2011 at [36];
·had ever faced any adverse attention from the CID in 2012 because they thought he organised or attended any LTTE remembrance events at [36];
·relocated to Batticaloa to avoid the LTTE remembrance celebrations, or the CID in Jaffna, or that he was in hiding there until his departure from Sri Lanaka at [36]; and
·family who ever had any interactions with either the CID, or unknown persons, seeking the applicant’s whereabouts noting at [40] the applicant’s family continued to live in Jaffna unharmed.
The Authority was satisfied at [39] that the applicant was released unconditionally from jail and there were no convictions against his name.
The Authority was not satisfied at [45] that the Sri Lankan authorities would impute the applicant to hold a pro-LTTE, or anti-Sri Lankan government, political opinion because of his status as a young Tamil male who has resided north and east; the period of time he spent in custody; the nature of the charges previously brought against him; or his 2012 attempt to depart Sri Lanka illegally by boat. Overall, it found the applicant did not face a real chance of harm for any of these reasons, should he return to Sri Lanka.
While the Authority accepted there is a real chance the applicant will be questioned, fined, and held briefly as part of the re-entry process, it did not accept at [51] that he would face greater scrutiny or penalty upon return than other illegal departees, despite his previous record. On the evidence before it, it was not satisfied that any routine questioning at the airport upon return, which all illegal departees undergo, amounts to serious harm.
It was also not satisfied at [53] that the payment of a fine or being held in detention or a nearby prison for a period of up to 24 hours or a brief period at the airport cumulatively amounted to serious harm. It accepted the applicant may experience poor conditions if imprisoned for this brief period as the result of ageing prison infrastructure, overcrowding and a shortage of sanitary and other basic facilities. However, it was not satisfied that such conditions of themselves in this case constitute serious harm as defined by the Act.
It was not satisfied at [54] on the evidence that even if the applicant pleads not guilty, there is a real chance he will be detained any longer than a brief period.
The Authority was satisfied at [55] that the Sri Lankan law itself, and application and enforcement, in the applicant’s case did not amount to systematic and discriminatory conduct.
The Authority concluded at [56] the applicant did not meet the requirements of the definition of refugee in s 5H(1) and did not meet s 36(2)(a) of the Act.
The Authority concluded at [62] there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant will suffer significant harm. The applicant did not meet s 36(2)(aa).
GROUNDS OF JUDICIAL REVIEW
The sole ground of judicial review is contained in an Amended Application lodged on 31 December 2024. It is reproduced as follows:
The applicant claimed that in October 2012 two CID officers came to his workplace in Jaffna, took him to a location and interrogated him about LTTE members and weapons, and then returned him to his workplace. The IAA at [21]-[23] and [35]-[36] did not accept this event occurred. The IAA fell into jurisdictional error in rejecting this claim. In particular, the IAA, in its findings at [21]-[23] and [35]-[36] misunderstood the claim, overlooked or failed to have regard to most of the applicant’s evidence concerning the claim and/or did not give proper and genuine consideration to most of the applicant’s evidence concerning the claim.
THE APPLICANT’S SUBMISSIONS
The applicant submitted that the Authority misunderstood his claims concerning the October 2012 CID Interrogation having focussed in its findings at [21]-[23] and [35]-[36] on a minor part of the applicant’s claims and ignored the balance of substance of the applicant’s evidence concerning the claim. These findings involved jurisdictional error.
First, the Authority at [21]-[23] and [35]-[36] did not refer to the applicant’s consistent evidence over time (during the applicant’s entry interview in May 2013, statement accompanying his SHEV application October 2016 and the applicant’s interview with the delegate in February 2017) concerning the questions asked by the CID officers to the applicant. Had the Authority considered this aspect of the applicant’s evidence, it was obvious the CID officers were interested in collecting or obtaining information about former LTTE members and the location of weapons, and not prosecuting the applicant for attending some remembrance event six months earlier.
Having focussed at [21]-[23] on peripheral matters on which it relied upon to reject the October 2012 interrogation claim, the Authority overlooked an important part of the applicant’s evidence and thereby misunderstood the claim at [21]-[23] and [35]-[36].
The applicant submitted jurisdictional error may occur where a decision-maker overlooks or fails to have regard to evidence or material which; a) was “arguably of critical importance” (VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77]), b) “was relevant and cogent and was corroborative of the appellant's claim” (W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 432 at [17], c) was “not peripheral” and “went directly to the appellant’s claims [and] also went to his credibility” (BHW16 v Minister for Immigration and Border Protection (2019) 168 ALD 463 at [43]), and d) was clearly relevant to its findings (W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449 at [30]).
Second, reference was made to Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [27], the Authority “misunderstood relevant facts or materials”.
Third, the Authority failed to give proper and genuine consideration to the applicant’s evidence concerning the October 2012 CID Interrogation claim. The applicant made reference to Singh v Minister for Home Affairs [2019] FCAFC 3 at [30]-[37]. Counsel for the applicant submitted that the applicant’s detailed evidence during the interview with the delegate, as well as that in the statement accompanying his SHEV application concerning questions asked by CID officers were central to his claim about the October 2012 CID Interrogation. However, the Authority made no reference to such evidence in its analysis at [21]-[23] and [35]-[36]. Reference was made to EKN17 v Minister for Immigration and Border Protection [2019] FCA 1135 at [91].
The remaining question is whether the error was material (see: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7] and [14]). Had the Authority not committed the error, it may have accepted that the October 2012 CID Interrogation occurred, which in turn would have affected its assessment of the applicant’s risk profile.
THE FIRST RESPONDENT’S SUBMISSIONS
The Authority is not required to consider a claim that is not expressly made or does not squarely arise on the materials before it: NABE v Minister for Immigration and Indigenous Affairs (No 2) (2004) 144 FCR 1(“NABE”) at 18-19 at [61]. The integers of an applicant's claims are those expressly articulated, and those which arise squarely on the material before the decision-maker; (see: NABE at [58]). An unarticulated claim must emerge clearly from the materials before a decision maker will be obliged to consider it; (see: NABE at 22 [68]). On a fair reading of the material before the Authority, the applicant did not raise a claim that the CID were using the accusation as merely an excuse or pretext. The applicant had consistently claimed that his alleged participation in remembrance events was a reason for the CID's renewed interest in him in 2012.
The fact that the applicant was accused of being, but was not, involved with the Remembrance Day celebrations does not indicate that the accusation was merely a ruse or a pretext. Such a claim does not clearly arise from the material. On a fair reading of the material before the Authority, the applicant did not expressly articulate a claim that the accusation "was a pretext or excuse to pressure the applicant" as alleged at [19] of the applicant's submissions. Nor did such a claim squarely arise on the material. As such, the Authority was not obliged to consider such a claim.
The applicant submits at [26] that the Authority "focused on a minor part of the applicant's claim and ignored the balance and substance of the applicant's evidence concerning the claim". To the contrary, on a fair reading of the applicant's evidence, the accusation was a central aspect of the applicant's narrative of the October 2012 interrogation as it provided a basis as to why the CID had a renewed interest in him. The accusation was also consistently raised in the applicant's accounts in the entry interview, SHEV statement and interview with the delegate.
As the Authority had rejected the impetus or the reason as to why the CID had a renewed interest in the applicant in 2012, it was therefore logical and rational for the Authority to reject the applicant's overall account of the 2012 interrogation.
The Authority did not misunderstand the applicant's claims, or any relevant facts or materials, or fail to give proper and genuine consideration to the applicant's evidence concerning the October 2012 Interrogation claim. Ground 1 cannot be established.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539 at [46] the following was said:
The Tribunal is not a Court. It is an administrative body operating in an environment which requires an expeditious determination of a high volume of applications. .Its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected from a court of law.
More recently in BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J emphasised the above stating:
It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
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]).
It is plainly not necessary for the 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 at [46]). Further at [47] the Court said as follows:
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 applicant takes issue with [35] – [36] of the Authority’s decision record which states as follows:
35. I also consider that the applicant has not presented any convincing reasons as to why the Jaffna CID would take an interest in him more than a year after his release from custody, and after the applicant had consistently stated he never had any LTTE links. Nor are there any credible reasons before me to support the applicant’s claim that they would accuse him of attending LTTE remember its events, if he had not done so.
36. On the evidence I do not accept that the applicant had any further actions with authorities after his release from jail on 3 June 2011, or that is ever faced any adverse attention on the CID in 2012 because they thought he organised or attended any LTTE remember its events. I do not accept the applicant relocated to Batticaloa to avoid the LTTE remember its celebrations, or the CID in Jaffna, or that he was in hiding there until his departure from Sri Lanka
The applicant submits that he consistently claimed that the interest by the CID in him was to obtain information from him about former LTTE the members and location of weapons. Although the delegate did not accept that some of these events occurred, the delegate appreciated that (if the applicant’s evidence was true) then the motivation of the CID was as described. It is submitted that the Authority either misunderstood what the applicant was claiming and in so doing, overlooked or failed to have regard to the fact that what material is submitted is arguably of critical importance, was relevant or cogent to the applicant’s claim it was not peripheral.
A fair reading of [35] – [36] indicates that the Authority was aware of his claims and the reasons why he said the CID were interested in him but rejected them on the basis that the reasons presented were not “convincing”. The Court does not accept that the claimed integer is overlooked, it was simply that for the reasons it gave, the Authority did not accept that evidence.
Although the case has been framed by both the applicant and the respondent on the basis that the interest of the CID in the applicant was an unarticulated claim, the claims of CID interest were clearly set out at [9] of the Authority’s decision record. At [23] of the decision record, the Authority recorded that the applicant had stated consistently he had never attended any LTTE remembrance events, and the Authority considered it implausible that the Jaffna CID would suddenly develop an interesting for this reason more than a year after his release from jail.
The Court is not satisfied that the Authority overlooked or failed to have regard to the applicant’s evidence and/or did not give it proper and genuine consideration. Such a finding cannot be made lightly. The proper approach to such a claim was summarised by Reeves, O'Callaghan and Thawley JJ in Singh v Minister for Home Affairs [2019] FCAFC 3 at [37]:
In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a) the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c) a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
DISPOSITION
The sole ground of judicial review has no merit, and the application must be dismissed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 29 January 2025
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