FEDERAL COURT OF AUSTRALIA

BTW17 v Minister for Immigration and Border Protection [2018] FCAFC 10

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to amend his grounds of appeal.

2.    The orders made by the primary judge be set aside.

3.    The decision of the Immigration Assessment Authority made on 23 March 2017 be quashed.

4.    A writ of mandamus be directed to the respondents requiring determination of the appellant's application according to law.

5.    The first respondent pay the appellant's costs of the appeal and the proceedings of the Court below to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    The appellant appeals from a decision of the Federal Circuit Court of Australia dismissing an application for a constitutional writ. That primary decision dismissed an application to review a decision of the Immigration Assessment Authority (Authority). On 23 March 2017, the Authority, under Pt 7AA of the Migration Act 1958 (Cth), had affirmed a decision of the Minister’s delegate not to grant the applicant a protection visa.

2    For reasons which follow, the appeal should be allowed.

BACKGROUND

3    As noted in the primary decision, the appellant arrived at Christmas Island as an unauthorised maritime arrival on 16 September 2012 and was subsequently transferred to Nauru in 2012 and then again transferred back to Australia. He lodged an application for a protection visa in September 2016. In February 2017, the Minister’s delegate refused to grant the applicant a Safe Haven Enterprise Visa. The delegate found that the applicant failed to meet the criteria under the Act and found that he was not an excluded fast track applicant.

4    On 14 February 2017, the Authority informed the appellant that the matter had been referred to it for review. The Authority’s correspondence identified that there were limited circumstances in which the Authority could consider new information. The correspondence attached a fact sheet and practice direction and provided the appellant an opportunity to put on new information and provide submissions. The appellant took advantage of this opportunity and made submissions by email of 27 February 2017 purporting to provide new information. The Authority concluded that there were exceptional circumstances to justify the receipt of some but not all of the material supplied. Nothing turns on this.

5    The Authority accepted the appellant shot a gang member in 2011 and it accepted that the appellant was arrested for attempted murder and spent 13 months on remand. Then after, whilst released on bail, the appellant did not report to police as required and subsequently left Sri Lanka illegally. The Authority was satisfied that the appellant may be identified and detained on arrival and that this would be the result of the lawful prosecution of the crime by Sri Lankan Authorities but did not of itself amount to persecution.

6    The Authority made reference to the appellant’s concerns about torture and arbitrary death at the hands of police and other security agents. It did not accept that the appellant faced a real chance of torture or arbitrary death. It placed significant weight on the fact that the appellant was apprehended and charged with offences and held in remand for 13 months and that there had been no indication at that time that he was tortured or otherwise mistreated by the police or authorities.

7    The Authority had not been satisfied that the appellant’s failure to meet his bail requirements would result in adverse action that would lead to torture, arbitrary killing or other harm. It rejected various other claims which are no longer pursued. These claims in particular related to his inability to work and the risk of revenge from other gang members. The Authority also rejected a contention that the appellant faced a real chance of harm due to a data breach, which breach it accepted had occurred.

8    Accordingly, the Authority was not satisfied there was a real chance the appellant would face any harm as a result of being a failed asylum seeker. It found that he did not meet the definition of refugee under the Act and did not meet the criteria under s 36(2)(a).

9    In relation to complementary protection assessment on which this appeal turns, the Authority dealt with the question of the penalty that the appellant would face as a result of the offences he had committed. It did not accept that the appellant would be tortured and arbitrarily deprived of his life and was not satisfied that he would be subject to cruel, inhumane or degrading treatment or punishment.

10    The Authority made reference to the appellant’s concern that he would face the death penalty in Sri Lanka. The Authority referred to an Amnesty International report, Death Sentences and Executions 2014, that reported that the death penalty continues to be passed in Sri Lanka for some serious crimes, however, no death sentences have been carried out in over 10 years. The Amnesty International report described Sri Lanka as ‘abolitionist in practice’. The Authority also referred to a DFAT report, DFAT Country Information Report - Sri Lanka, dated 24 January 2017, advising that the last death sentence in Sri Lanka was carried out in 1976. Reference was made by the Authority to a statement by President Sirisena in September 2015 (recorded in the DFAT report), in response to public concerns and media reports of violent crime, that indicated that the President would implement the death penalty from 2016 should he obtain parliamentary approval to do so. The Authority noted that according to the information contained within the DFAT report, there had then been no indication that Parliamentary approval for implementation of the death penalty would be provided.

11    Relevantly the Authority concluded that, taking into account the country information, there was not a real risk that the appellant would be subject to the death penalty in Sri Lanka. Overall the Authority concluded there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk of the appellant suffering significant harm and that he did not meet the criterion under s 36(2)(aa) of the Act.

THE FEDERAL CIRCUIT COURT

12    In his amended application before the Federal Circuit Court the appellant asserted that the Authority’s decision was vitiated by jurisdictional error as it was irrational or illogical, or lacked an intelligible justification, or exposed a failure to look to the reasonably foreseeable future as opposed to the immediate future. In particular, the argument shortly put was that the conclusion that the appellant was not facing a real risk of significant harm in respect of the introduction of the death penalty was irrational or illogical on the information before the Authority. It was argued that the analysis of the following passage was wholly inadequate in the manner discussed below.

13    The key passage from the DFAT report which has been the focus of attention reads as follows:

DEATH PENALTY

4.8     Sri Lanka retains the death penalty for murder and drug trafficking, although it has not carried out any executions since 1976. Under the Criminal Procedure Code, all death penalty sentences have to be appealed and a court appointed legal aid lawyer engaged to defend the accused. Presidential ratification is required for a death penalty to be implemented. The method of execution in Sri Lanka is hanging.

4.9     According to Sri Lanka’s Commissioner General of Prisons, as at September 2015, there were 1,115 prisoners on death row. Amnesty International reported that at least 51 people were sentenced to death in 2015 but presidential ratification was [sic] not been issued. At the time of publication, the most recent death sentence had been handed down on 8 September 2016 to Duminda Silva (a former lawmaker and ally of then President Rajapaksa), and his four suspected accomplices, for killing a politician in 2011. The decision was seen as a sign of an increasingly independent judiciary.

4.10     In September 2015 President Sirisena indicated that he would implement the death penalty from 2016 should he obtain parliamentary approval to do so. This announcement was made in response to public calls to implement the death penalty following media reports of serious sexual assaults and murders. At the time of publication there was no indication that parliamentary approval or implementation of the death penalty would be provided.

14    The primary judge dealt with these matters as follows:

25.    [The appellant] sought to argue that the latest that information could have been up to date to was September 2016. [The appellant] argued that there was an inference available that the position may change thereafter. [The appellant] argued that the Authority had not considered the risk of a change in the parliamentarians and the introduction of the death penalty. [The appellant] also submitted that the date of publication and the timing of the information available in respect of whether or not the death penalty would be implemented was the subject of an error in the source material that could have been ascertained by the Authority, which would have indicated that it was only up to September 2016.

26.    I do not accept that any such matter was the subject of a duty of inquiry. There is no readily ascertainably [sic] fact in respect of a credible issue for the purpose of the determination of the applicant’s claims. On the face of the material, the Authority made dispositive findings in respect of the applicant’s claims that were open on the material before the Authority. The Authority referred to country information and provided reasons in support of its adverse findings in support of the applicant’s fears about the death penalty. There was no irrationality, illogicality, or unreasonableness in the adverse determination by the Authority in finding that the applicant would not face a real risk of significant harm by reason of the future implementation of the death penalty.

27.    It was a matter for the Authority to make findings in respect to the applicant’s claims. In substance, Ground 1 is an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 1.

AMENDED GROUNDS OF APPEAL

15    The appellant seeks a variety of forms of relief on the basis that the primary judge erred in failing to conclude that the Authority’s decision was vitiated by jurisdictional error on the following amended grounds:

(1)    By reasoning that there was not a real risk that the appellant would be subject to the death penalty in Sri Lanka, in circumstances where the incumbent President Sirisena announced an intention to reintroduce the death penalty, because the death penalty had not been implemented for many years and that ‘parliamentary approval’ would not be provided, where there was no evidence that parliamentary approval was required, and where the composition of parliament necessarily changed, was irrational or illogical, or lacked an intelligible justification, or exposed a failure to look to the reasonably foreseeable future as opposed to the immediate future, or was otherwise unreasonable in failing to make an obvious enquiry, and:

(2)    By reasoning in a single, conclusionary sentence that ‘[t]here was no irrationality, illogicality or unreasonableness in the adverse determination by the Authority that [the appellant] would not face a real risk of significant harm by reason of the future implementation of the death penalty’, the [primary judge] erred in failing to give proper, genuine and realistic consideration to the appellant’s argument that the [Authority’s] reasoning exposed arbitrariness or caprice, or in an absence of intelligible justification, or a failure to look to the reasonably foreseeable future.

16    Ground 2 was added by way of the amendments although, as suggested in oral exchanges, it added little to Ground 1. Either Ground 1 would succeed on the basis that, for reasons given, it was irrational to conclude that there was no real risk of the death penalty or it would not. The argument was directed to the limited material relied upon by the DFAT report. The point is either correct or it is not. Clearly the primary judge thought that there was sufficient information in the content of the DFAT material on which to draw that conclusion. That is where we respectfully would differ.

NOTICE OF CONTENTION

17    The Minister also relies on a notice of contention directed to the question of whether there was a failure to make an obvious enquiry or whether there was a duty to enquire. This exchange between the parties engaged an analysis of the specific provisions of the Act. The notice of contention asserts that the primary judge had rejected the argument that the Authority had failed to make any obvious enquiry as the Federal Circuit Court did not accept that any such matter was the subject of a duty of enquiry given that there was no readily ascertainable fact in respect of a credible issue for the purpose of the appellant’s claims. Further, the notice of contention asserts that the primary judge should also have found that the Authority had no duty to enquire in relation to any of the matters which had been raised in Ground 1 of the application as a result of the operation the provisions of Div 3 of Pt 7AA of the Act, specifically:

(a)    Section 473DB provides that subject to Part 7AA of the [Act] the [Authority] must review a decision if referred to it without accepting or requesting new information.

(b)    Section 473DC(2) provides that the [Authority] ‘does not have a duty to get request or accept any new information where the [Authority] has requested to do so by a referred applicant or by any other person or any other circumstances.’

(c)    Section 473DA(1) of the [Act] provides that Division 3 of Part 7AA, along with ss 473GA and 473GB is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the [Authority].

18    As will be seen, it is unnecessary to examine the notice of contention as we consider that the primary ground of appeal is made out and the Minister accepts that nothing in the Div 3 of Pt 7AA or elsewhere would preclude a challenge to a decision made by the Authority on the basis of legal irrationality or unreasonableness. That is, it is unnecessary to consider the appellant’s further argument as to the failure to make further enquiries.

19    From the discussion which follows, there were several obvious further enquiries which were necessary on such a serious issue before making the decision as to no real risk. For example, the actual state of law, the power of the President, the relevant power and role of Parliament (if any) and to what extent (if any) those matters had been publicly developed or discussed since the President's announcement. However, it is unnecessary to decide this appeal on a failure to enquire basis and we expressly do not. Rather the appeal succeeds on the basis that it was not rational to reach the no real risk decision on the minimal information specified and relied upon.

CONSIDERATION

Legal principles

20    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the Migration Review Tribunal had refused to grant an adjournment to an applicant seeking a review of a decision refusing to grant an occupationally based visa. The applicant had been awaiting a revised skills assessment from a body known as Trade Recognition Australia. Nonetheless, the Tribunal proceeded to a decision adverse to the applicant without waiting for that relatively imminent revised assessment, an assessment which was necessarily critical to her success and beyond her power to produce at the time of her appearance. It was held that the decision of the Tribunal was officiated by unreasonableness, with Hayne, Kiefel and Bell JJ referring to Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, saying (at [68]) that the legal standard of unreasonableness ‘should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it’. Lord Greene MR in Wednesbury Corporation had made the point (at 229) that bad faith, dishonesty, unreasonableness, attention given to extraneous circumstances and disregard of public policy were all relevant to whether a statutory discretion was exercised reasonably.

21    In Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 (1 November 2017), the Full Court (Gilmour, Logan and Mortimer JJ) said (at [34]-[36]):

[34]    To discern irrationality or illogicality in the Tribunal’s reasoning, more must be shown than simply the fact that the decision is one upon which reasonable minds may differ: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84]–[85] citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] per Crennan and Bell JJ. As Crennan and Bell JJ stated in SZMDS at [135]:

A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

[35]    Moreover, illogicality must be shown to have affected the decision in question: SZOOR at [85].

[36]    As to unreasonableness, the applicable standard was summarised by the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] as follows:

In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]):

It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384 ; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221 [47].

22    The Minister submits that neither the impugned finding of the Authority nor the process by which the Authority undertook a statutory review function meets these tests.

23    Much of the Minister’s argument appears to be based on the contention that the appellant’s true complaint is that the Authority failed to carry out further enquiries whereas the statutory scheme makes clear that a review is to be conducted on the papers and on the material that was before the decision maker (s 473DB). While the Authority has a statutory discretion to obtain new information there is no obligation to do so (s 473DC(2)), nor any statutory obligation to consider the possible exercise of that power.

24    The examination below, however, proceeds on the basis that even on information before the Authority, the standard of satisfaction could not reasonably be reached.

25    The Authority dealt with the risk as to the death penalty at [36] of its statement of reasons saying:

… I have considered the [appellant’s] concern that he would face the death penalty in Sri Lanka. Amnesty International advised that the death penalty continues to be passed as sentence for some serious crimes, however they reported that no death sentences have been carried out in over 10 years and describe Sri Lanka as ‘abolitionist’ in practice. DFAT advised that the last death sentence in Sri Lanka was carried out in 1976. I note that in September 2015 President Sirisena, in response to public concerns and media reports of violent crime, announced an intention to implement the death penalty from 2016. However, DFAT reported that as at January 2017 there was no indication that parliamentary approval for implementation of the death penalty would be provided. Taking account of the country information I find that there is not a real risk that the appellant would be subjected to the death penalty in Sri Lanka. [citations omitted]

26    It is clear that the most current information before the Authority was the DFAT report. The Authority in the examination of the events, clearly and reasonably linked the appellant’s alleged crime with ‘serious crimes’ for which the death penalty could be passed as a sentence but concluded that there was no real chance of the death penalty because the last death sentence in Sri Lanka was in 1976.

27    However, this fails to address the most recent fact actually known in the material expressly relied upon, namely that the President had announced (more recently than the Amnesty International Report) an intention to implement the death penalty from 2016. The earlier historic material, which led to the conclusion that it was unlikely the death penalty would be imposed or more relevantly, implemented, had to be evaluated as against the new Presidential announcement which was quite to the contrary on its face. Amidst all of this, there are no indications of what the true state of the law is in Sri Lanka, that is, whether or not the President can implement the death penalty and the extent to which, if any, he would require Parliamentary approval to do so, let alone whether the fact that parliamentary approval had not been given at the time of the DFAT report meant that it could be assumed that such approval would not be given at a relevant foreseeable future date which could affect the appellant. Certainly the content of the DFAT report cannot be taken as a statement that Parliament had declined to give any approval which might be necessary for implementation of the death penalty. It does not say that. The better reading is that the President sought to reintroduce it and at the time of the DFAT report it was unknown whether or not he would have parliamentary support to do so.

28    It is not a reasonable conclusion against that background that there is no real risk the appellant would be subject to the death penalty. The President has indicated he intends to reintroduce it and the position of Parliament is unknown. These events have taken place at a point in time after the Amnesty International report and in apparent response to public concerns and media reports of violent crime. The information as to the number of people on death row whose death sentences had not been executed and that Sri Lanka was effectively abolitionist in practice logically had to give way to the most recent fact – the President announcing that he intended to reintroduce the death penalty. The fact that this had not occurred as at the time of the DFAT report fell well short of a reasonable basis on which to conclude there was no real risk that the appellant might be exposed to a death sentence.

29    Particularly in circumstances where the consequences of a conclusion are so serious, there is a paucity of information leading to that serious conclusion.  The possibility of implementation of the death penalty has always and logically assumed importance in Australian jurisprudence and legislation. Although in dissent, Kirby J made the following remarks, with which there could be little dispute, in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 (at [134]) that ‘[w]here there is any risk of death or disappearance, assumption is not good enough. Express findings must be made’. While the DFAT report reported that, as at January 2017, there was no indication that parliamentary approval would be provided, this was the slimmest of information on which the Authority could act.

30    There was insufficient clear foundational material as to the Sri Lankan legal system and the state of affairs as between the presidential announcement and Parliament to warrant reasonably reaching the conclusion that the appellant was exposed to no real risk as to the death penalty.

31    On this basis the appeal should be allowed. The second ground adds nothing to the first and is unnecessary to address.

CONCLUSION

32    For those reasons the appeal must be allowed and the following orders are made:

(1)    The appellant have leave to amend his grounds of appeal.

(2)    The orders made by the primary judge be set aside.

(3)    The decision of the Immigration Assessment Authority made on 23 March 2017 be quashed.

(4)    A writ of mandamus be directed to the respondents requiring determination of the appellant’s application according to law.

(5)    The first respondent pay the appellant’s costs of the appeal and the proceedings of the Court below to be assessed if not agreed.

Associate:

Dated:    1 February 2018