FEDERAL COURT OF AUSTRALIA

DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant has appealed a decision of a judge of the Federal Circuit Court delivered on 16 January 2019 which dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority. The Authority had affirmed the decision of a delegate of the Minister to refuse to grant to the appellant a Safe Haven Enterprise (subclass 790) visa (the visa).

2    The appellant relies on four grounds of appeal to the effect that the primary judge erred by not finding that the Authority’s decision was attended by jurisdictional error.

3    First, it is said that her Honour ought to have found that the Authority failed to consider the appellant’s claims regarding the physical and attempted sexual assault of his wife in June 2012 and regarding the harassment of his wife by telephone, which prompted her to disconnect her phone and move to Eravur, in the district of Batticaloa, Sri Lanka.

4    Second, it is said that her Honour ought to have found that the Authority failed to consider whether the appellant faced a real chance or risk of serious or significant harm as a result of continued extortion, or else failed to perform its statutory task in considering this aspect of the appellant’s claim.

5    Third, it is said that her Honour ought to have found that the Authority’s findings to the effect that if the appellant were to be charged under the Immigrants and Emigrants Act 1948 (Sri Lanka) (the IEA), he could secure bail (and, if necessary, have a family member stand as guarantor for that purpose) or pay any fine imposed, were illogical and unreasonable.

6    Fourth, it is said that her Honour ought to have found that, in circumstances where it was not logically open to conclude that the appellant would be able to secure bail or pay any fine imposed under the IEA, the Authority’s failure to exercise its discretion to get new information about such matters from the appellant under s 473DC of the Migration Act 1958 (Cth) (the Act) was unreasonable.

7    It is convenient to begin by recounting some of the background.

8    The appellant is a citizen of Sri Lanka and was born in Eravur on 2 February 1972. He is a Hindu man of Tamil ethnicity. He is married and has a daughter and a son, although his wife and children remain in Sri Lanka. He departed Sri Lanka by boat and arrived at Christmas Island as an unauthorised maritime arrival on 26 August 2012 and was interviewed on 26 October 2012. Apparently he was released from Christmas Island in January 2013.

9    On 9 March 2016 the appellant applied for the visa. The appellant’s claims were set out in a statutory declaration dated 9 August 2013 and a further statutory declaration dated 22 February 2016. We will return to the contents of these declarations later as they are relevant to the claims made by the appellant.

10    The appellant’s claims arise from his ethnicity, actual or imputed political beliefs and membership of a particular social group, being a successful Tamil goldsmith, being from a Liberation Tigers of Tamil Eelam (LTTE) controlled area, having participated in political protests against the treatment of Tamils in Sri Lanka, and who, after he and his family were attacked, threatened and extorted by claimed affiliates of paramilitary groups and the Criminal Investigation Department (CID), having departed Sri Lanka illegally. The asserted factual particulars of his claims were as follows:

(a)    The appellant was displaced during the Sri Lankan civil war. From 1990 onwards, he divided his time between Colombo, where he worked as a goldsmith, and Puttalam where his family lived (and later, his wife and children). Many Tamil goldsmiths worked in the area where he had his business.

(b)    Towards the end of 2009, the appellant was visited at his shop by people identifying themselves with the Karuna group. They demanded 5 lakhs in exchange for allowing the appellant to continue operating his business. They had a gun with them and threatened to kidnap the appellant if he did not comply. After three weeks, the appellant paid them 1 lakh.

(c)    Six months later, a different group of people came to the appellant’s business, identifying themselves with the Pillayan group. They were armed with a gun and demanded 6 lakhs. The appellant negotiated to pay 2 lakhs, and did so after three weeks.

(d)    In October 2011, the appellant was again visited by people identifying themselves with the Karuna group. They demanded 25 lakhs. They pointed a gun at the appellant and threatened to kill him. They also threatened to take all of the jewellery in his store. The appellant negotiated to pay 10 lakhs within two months; he used his earnings and sold his wife’s jewellery to do so.

(e)    On 20 June 2012, the appellant was again visited, this time by people identifying themselves with the CID. They asked after the appellant by name. They asked if he had attended recent demonstrations protesting the arrest and enforced disappearance of Tamils. The appellant confirmed that he had. They closed the shop, took the appellant upstairs, threatened to kill him, demanded 50 lakhs and hit him. The appellant agreed to pay 30 lakhs within two months. On 21 June 2012, the appellant went to the police station and complained about the CID visit. The police were complacent, telling the appellant that the incident was commonplace and failed to give him a record of his complaint. The next day the appellant returned to his home in Puttalam.

(f)    On 23 June 2012, the appellant was visited at his home by the same claimed CID members, accompanied by some others. The appellant’s wife, son and in-laws were present. The claimed CID members told the appellant they had warned him not to go to the police. They slapped and hit him, manhandled his son, hit and attempted to sexually assault his wife, and reiterated their demand for 50 lakhs, which the appellant then promised to pay in full. The appellant promised not to go back to the police.

(g)    The appellant was afraid to return to work in Colombo and unable to raise the 50 lakhs demanded of him. The CID continued to visit, demanding money. Some friends of the appellant told him about a way to go to Australia, and he left Sri Lanka on 7 August 2012.

(h)    Following the appellant’s departure, he said that his wife had been twice visited by the reputed CID members, who hit her, behaved in a sexually inappropriate way with her and told her that they knew the appellant was in Australia, and that he would have problems at the airport if he returned. In his statutory declaration dated 22 February 2016, the appellant added that his wife was subsequently harassed by phone by reputed CID members, and had moved to Eravur to be closer to her brother and disconnected her phone. It would seem that her move and her disconnection of the phone occurred sometime in or before December 2012. That timing is significant given the appellant’s first ground of appeal which we will discuss later.

(i)    The appellant feared harm including that he may be abducted, arrested, detained, assaulted or killed by the CID, paramilitary groups or Sri Lankan authorities if he returned to Sri Lanka. He fears continuation of past harms. He also feared that he may be harmed by the CID or Sri Lankan authorities because he was involved in political demonstrations, because he complained to the police about the CID and because he left Sri Lanka unlawfully and claimed asylum in Australia. Further, he feared that because he left Colombo without paying the extortionists, his family may be harmed. Further, he did not believe that the Sri Lankan authorities would protect him, because some of his fears emanate from them and they do not adequately protect Tamils.

11    On 12 August 2016, the delegate refused to grant the appellant the visa. On 18 August 2016, the matter was referred to the Authority. On 26 September 2016, the Authority affirmed the delegate’s decision.

12    On reviewing the decision of the delegate, the Authority made the following findings.

13    The Authority was not satisfied that the appellant faced a real chance of serious harm because of his experiences during the Sri Lankan civil war, or on the basis of his Tamil ethnicity alone, given recent improvements in Sri Lanka.

14    The Authority was satisfied that the appellant was part of the Goldsmith Association and that he attended demonstrations, but found that his role was inadequate to attract adverse attention from the authorities.

15    The Authority was satisfied that the appellant’s claims of past extortion were plausible, and owing to credible reports could not “discount that the applicant could continue to be subject to extortion if he returns to Sri Lanka and continues to work as a goldsmith”, but found that the chance the appellant would face “violence or other physical threat” was remote. The Authority considered that the situation in Sri Lanka had changed.

16    The Authority was not satisfied that the people who visited the appellant in 2012 and subsequently visited his wife were CID members, but found they were likely extortionists, and that “[a]s above, I find that the chance the applicant would experience violence or physical harm from these extortionists is remote”. Further, the Authority was not satisfied that the CID would pursue the appellant on return from Sri Lanka because of his complaint to police and ultimately found that the June 2012 incidents did not give rise to a real chance of harm.

17    Further, the Authority accepted that the appellant may be questioned, arrested, charged, remanded and fined as an illegal emigrant, but concluded that the appellant would not face serious harm by virtue of the “brief period of detention required to complete the process of investigation, or while on remand”, which would in any case follow from a law of general application. The Authority further concluded that the payment of any fine would not subject him to serious harm. Further, the Authority was not satisfied the appellant faced a real chance of serious harm as a failed asylum seeker.

18    As to the complementary protection criterion, the Authority referred to its earlier findings with respect to s 36(2)(a), and added that the appellant would not face significant harm as an illegal emigrant or failed asylum seeker, because his circumstances were not such as would attract particular mistreatment and because a brief period in detention and/or the imposition of a fine would not produce a real risk of significant harm.

19    On 20 October 2016 the appellant applied for judicial review of the Authority’s decision. A hearing of the appellant’s amended application took place before the primary judge on 18 October 2018. The four grounds of the application before her Honour mirror, in substance, the four grounds raised on the present appeal. On 16 January 2019, the primary judge dismissed the application. For the moment it is not necessary to summarise her Honour’s reasons.

20    On 5 February 2019, the appellant filed his notice of appeal in this Court. On 27 February 2019, the Minister filed a notice of contention.

(a)    Ground 1: Failure to consider claims in relation to the appellant’s wife

21    The appellant asserts that the Authority’s reasons fail to address the appellant’s claims that:

(a)    when the CID members visited his home in June 2012, they “hit [the appellant’s] wife and tried to indecently assault her”; and

(b)    after the appellant left Sri Lanka, the asserted CID members “harassed [the appellant’s wife] on the telephone”, and that since then she has “moved back to Eravur to be close to her brother where she feels safer and has disconnected the telephone so she cannot be harassed further”.

22    The appellant says that these claims appear only in the appellant’s second statutory declaration dated 22 February 2016, and were also omitted by the delegate. He says that these contextual matters support the inference that these claims were overlooked by the Authority.

23    It is said that these are distinct and substantial integers of his claims, but to which there was no reference by the Authority. The Authority found that the “people involved in the June 2012 visits” were most likely “persons seeking to extort money from the [appellant]” ([13]). It concluded, principally according to the appellant on the basis of country information, that he faced no ongoing risk from these people. But according to the appellant the physical and attempted sexual assault of the appellant’s wife during a visit from these individuals, and the fact that they had subsequently harassed the appellant’s wife by telephone to the point where she had disconnected her phone and relocated, were pertinent considerations in assessing the ongoing threat posed by these individuals to the appellant and his family, and whether it amounted to a real chance or risk of harm to the appellant. The appellant says that were such matters properly considered, the appellant’s account may have gainsaid general country information which the Authority took to indicate a qualified reduction in the threat posed to individuals with similar circumstances to the appellant. Accordingly, it is said that it was insufficient for the primary judge to conclude that these integers were not material to the Authority’s conclusions because those conclusions rested on country information.

24    Further, the appellant also says that the Authority tacitly accepted that the June 2012 visits occurred and rejected only that the visitors were CID members. So he says that the appellant’s claims about his wife cannot be said to have been disposed of by more general findings.

25    Further, the appellant says that the claims as to the harassment and physical and attempted sexual assault of the appellant’s wife are relevant to a distinct ground of harm to the appellant by virtue of harm to his wife and family. He points out that in his statutory declaration of 9 August 2013 he stated: “Now that I have left Colombo without paying the CID, I am worried that the CID will harm my family”.

26    By reason of the foregoing, the appellant says that the Authority was obliged but failed to consider these claims as part of its assessment of whether the appellant faced a real chance or risk of serious or significant harm.

27    We would reject this ground of appeal.

28    It may be accepted, of course, that a husband might have a well-founded fear of persecution based upon threats to his wife whether or not they live together. Serious detriment to a person encompassed within the notion of persecution can arise from a threat to a family member to whom the person is strongly attached by familial love and consequent commitment.

29    Further, it may be accepted that an integer of a claim to persecution may include the humanitarian problem of a separated family and that a husband’s separation from his wife and children may contribute to or be a consequence of relevant persecution.

30    But what was claimed by the appellant in the present matter?

31    It is not apparent to us that at the time of the delegate’s consideration or the Authority’s consideration the appellant was making a claim concerning continuing fears relating to his wife.

32    First, his earlier declaration at [18] and [19] referred to his fears concerning his own position and safety. Nevertheless at [14] and [16] he said:

The next day I went to Puttalam. On 23 June 2012 when I was at my home in Puttalam, at around 8pm some people came and knocked on my door. It was the same CID people that had come to my store with some other people, altogether it was 5 people. They asked me if I had made a complaint to the police and why I had done this. They said we warned you not to go to the police. They slapped my face and hit me in front of my wife, my children and my in-laws. My 7 year old son was also crying and one of the CID members pulled my son. They repeated their demand for 50 lakhs. They also hit my wife and tried to indecently assault her. I promised them that I wouldn’t make any further complaints to the police and I would pay the 50 lakhs.

… Now that I have left Colombo without paying the CID, I am worried that the CID will harm my family. When I was in Christmas Island, I was informed by my wife that these people have been to my house twice and said that they knew I had gone to Australia. They hit my wife and tried to misbehave with her. They told my wife that if I return to Sri Lanka I will face problems at the airport.

33    It may be noted that the underpinning foundation concerning the CID was not accepted by the Authority. We will return to this question later.

34    His second declaration at [6] to [8] also referred to fears concerning his own position and safety. Nevertheless he said at [5]:

In Clause 16 of my Statutory Declaration of 9th August 2013 I explained that after I left Sri Lanka, CID Officers went to my wife’s home twice and threatened her. They also harassed her on the telephone. Since then, she has since moved back to Eravur to be close to her brother where she feels safer and has disconnected the telephone so she cannot be harassed further.

35    It would seem that although the second declaration is some years later, nevertheless it is referring back to a telephone call that he had with his wife when he was on Christmas Island; he was in detention on Christmas Island from 26 August 2012 to 15 January 2013. It would seem that he told his wife sometime in the latter part of 2012 that she should move and disconnect the telephone. She apparently did this in or by December 2012.

36    Second, his evidence given at the interview on 25 July 2016 is significant.

37    On p 19 lines 11 to 25 he said the following:

MR ANSWAR: Your wife currently lives in Sri Lanka. Is that correct? Has anything happened to your wife since your departure?

INTERPRETER: After I left CID went to my house twice and were looking for me. They went looking for me soon after I left so probably when I was in the sea and when I called my wife from Christmas Island or (indistinct), I can’t remember, and she said they came looking for me. And so when they went to my house they hit her and they tried to sexually abuse her as well, and she was very upset, and then the next time they went she told them that I was going to Australia. She told them I was - I had gone to Australia they said that, “Somehow he will return here. When he returns we will take care of him and we wouldn’t leave him alone”. So they - I had a phone and she was using that phone and they were calling that phone and harassing her and abusing her, so she couldn’t live there. So I told her to go back to Batticaloa so she’s moved to Batticaloa in December.

38    On the material, it would seem that the December being referred to is December 2012.

39    At p 20 lines 31 to 41 he said:

INTERPRETER: After the incident with the CID I was very scared and at the time a lot of people were coming to Australia, a lot of refugees were coming to Australia by boat. So at the time I never wanted to leave Sri Lanka, I always wanted to stay there, and - and I've heard about people coming to Australia and my wife was very scared as well, and my parents too. I didn’t want to be separated from my wife and children but they were scared that I’d be taken and killed. So I was thinking about it and they told me that I should leave and be safe. One of my wife’s friend’s relative, her name was Radi, she was like a sub-agent, so my wife’s friend told my wife about it, and even though I didn’t want to, I thought if I stay back it will be a problem for me. Even though I didn’t want to, I decided to leave.

40    But of course this was expressing his fears when he was in Sri Lanka.

41    At p 23 lines 30 to 39 he said:

INTERPRETER: Yes, I was already affected by the CID. They already told - said that they would take me if I was to return to Sri Lanka. I departed illegally and if I was returned I might be arrested at the airport. I might be handed over to the CID who harmed me previously, so if they take me they will do anything to me. Definitely they will harm me. They might even kill me because I didn’t give them the money they asked for. So if that happens to me who’s going to be responsible? You know, my wife and my children they will be all alone. At the worst they will kill me or torture me and sort of make me disabled. If anything happens to me like that do you think the Australian government is going to take responsibility?

42    Here he was expressing fears for his personal safety and life, and that if something happened to him, his wife and children would “be all alone”.

43    Then at p 24 lines 15 to 28 and lines 42 to 44 he said:

INTERPRETER: The government (indistinct) that the authorities or CID, they haven't changed. It’s just because I didn't give them money, so I would have problems if I go back to Sri Lanka and that’s what they said. Because of that, if I was to return, if you can guarantee that I will be safe then I would go back. In Sri Lanka I was well off, you know, gold, being a goldsmith it’s a good business and I didn’t have to run away from that. Because of that I didn’t want to go to any other countries and stuff because my, you know, I was earning well. It’s just to, you know, the reason I left Sri Lanka to save my life and I did that for my wife and children, to look after them. I came here to save my life and it was for my wife and children and that’s what I’m asking you for. My wife really loves me and you know, I can do work on the weekends, on Saturday and Sunday where I was, but I don’t do that I go on a Friday to see my wife and children, and so I left them and came here. It’s been four years.

… INTERPRETER: I just want to be alive for my wife and children. If I was to return to Sri Lanka I know I’d be killed, so even if you put me back in the detention centre I just want to live.

44    Clearly, here he was making claims concerning his personal safety rather than the safety of his wife and children. As he said, he wanted to be alive for his wife and children.

45    And it is understandable why he was not making continuing claims concerning the safety of his wife and children. After he had spoken to his wife when he was on Christmas Island, it would seem that she had moved back for Eravur, Batticaloa by December 2012, which is on the other side of Sri Lanka to Puttalam and Colombo, and disconnected her telephone. There is no evidence or claim made concerning harassment of or threats to the wife after this time, that is, between December 2012 and the time of the delegate’s or the Authority’s consideration. Moreover, even up to December 2012 it is not clear from the appellant’s second declaration (at [5]) what the number of occasions or the nature of the harassment of the appellant’s wife over the telephone precisely involved; we note that the second declaration (at [5]) appears to distinguish between threats and harassment.

46    Now at one point the appellant’s counsel suggested that we could infer that threats to or harassment of the appellant’s wife were ongoing because the second declaration was made on 22 February 2016. But it is well apparent that [5] of the second declaration is speaking of events at an earlier time (the latter half of December 2012) and giving further detail.

47    By reason of the foregoing matters it is well understandable that neither the delegate nor the Authority expressly discussed separate and ongoing fears concerning the safety of the appellant’s wife. Such fears were not the focus or substantial element of the appellant’s claims at the time of the delegate’s or the Authority’s consideration.

48    The Authority did refer to the appellant’s wife in its reasons at [4] and [13]. Perhaps it could have been more elaborate in terms of setting out the factual background, although the Authority was not required to refer in detail to every piece of evidence advanced by the appellant in support of his claims. But as we say, the appellant did not seem to make any claim concerning the personal safety of his wife after she had moved by December 2012 and disconnected her telephone. And as to any claim concerning her personal safety up to that point in time, it seems to us that the Authority had considered this.

49    There is no clear line between evidence that does not need to be referred to and evidence that is so material that a failure to advert to it gives rise to an inference that the Authority has not properly considered a claim or an integer thereof. But the Authority’s reasons indicate that it gave careful consideration to the appellant’s claims. There was no error in the Authority not setting out all of the details in the appellant’s two statutory declarations or indeed the transcript of his interview. And any failure to do so does not give rise to any plausible inference that all of the evidence was not taken into account. Moreover, there was no failure to refer to an “integer” of the appellant’s claims.

50    More generally, an approach to jurisdictional error that relies on rigid categories or formulae is inapposite. Although a distinction between claims and their integers on the one hand and evidence on the other hand may be a useful tool of analysis, what is necessary is to focus on the importance of the asserted ignored material and the seriousness of the error. In our opinion, the fact that the Authority did not refer to all aspects of the appellant’s account does not invite an inference that it failed to consider all aspects of it.

51    And in any event, the authority’s more general findings subsumed the more detailed matters making it unnecessary to descend further into the detail. More generally, what is clear to us is that the Authority made sufficient material findings that adequately supported its decision and sufficiently considered the appellant’s claim(s).

52    Further, even if it is accepted that the Authority ought to have gone beyond the appellant’s express claim(s) and considered any other unarticulated claim raised by the evidentiary material before it short of engaging in a creative exercise, such a position does not avail the appellant. As we have said, the material before the Authority did not disclose a claim based on a perceived risk of harm to the wife at the time the delegate or the Authority was considering the matter.

53    Further, the Authority rejected the premise for any such claim in any event. In these circumstances it would have been unnecessary to make any further finding on the detail as the factual premise for the assertion failed.

54    First, in relation to the protests, the Authority found that the appellant’s profile was one of a simple observer and participant, but not an organiser, and this profile would not have attracted adverse attention on his return ([12]).

55    Second, in relation to the fear of the CID, the Authority found that the persons who came to the shop in 2012 were not from the CID ([13]). The Authority specifically referred to the “subsequent visits to the [appellant’s] wife” when considering these claims ([13]). The Authority accepted that the appellant felt aggrieved that the police did not effectively investigate his complaint about the CID, but found based on matters including more recent country information that the appellant’s fear was not well-founded ([14]).

56    Moreover, the Authority found that the persons who came to the shop in 2012, and the persons who came to visit the appellant’s wife, were persons seeking to extort money from the appellant. The Authority referred to its previous findings that the chance that the appellant would experience “violence or physical harm” from those extortionists was remote ([13], referring back to [11]). The Authority had earlier found that the chance of the appellant facing “violence or other physical threat” was remote.

57    Further, given that the Authority had been discussing the visits to the appellant’s wife immediately before this statement, the Authority’s reference in [13] to “the [appellant]” not experiencing violence or physical harm or threat can be read as harm or threat to the appellant both directly, and indirectly through his wife.

58    In summary, this first ground of appeal is rejected. There was no jurisdictional error and the primary judge was not in error for failing to find such error, albeit for reasons differently expressed to our analysis and upon which we do not need to linger.

(b)    Ground 2: Failure to consider extortion claims or apply the correct statutory test in respect of these claims

59    The appellant claims to have been subject to extortion and to fear continued harm from extortionists if returned to Sri Lanka. And the Authority accepted that the appellant’s claims of extortion were “plausible” given his circumstances and the country information. It noted some positive political changes in Sri Lanka, including the renunciation of paramilitary activities by some paramilitary groups, and improved efforts to pursue and prosecute these groups, but accepted that “DFAT are aware of credible reports that these groups continue to be active in criminal activity” ([11]), and went on:

I note the credible reports that paramilitary groups are involved in criminal activities and I cannot discount that the applicant could continue to be subject to extortion if he returns to Sri Lanka and continues to work as a goldsmith. However, the weakening of the paramilitary groups and their renunciation of paramilitary activities, their move into the mainstream and the prosecution of past members for violent crimes leads me to find that the chance the applicant would face violence or other physical threat is remote. I find there would not be a real chance that the applicant would suffer serious harm on return to Sri Lanka.

60    The appellant points out that the Authority’s approach is further elucidated later in its reasons. He points out that the Authority, in considering the appellant’s fear of harm from the CID, concluded that the people involved in the June 2012 visits to the appellant and his family, and in visits to his wife after his departure, were likely not CID members but extortionists. The Authority then referred back to the earlier passage, noting ([13]):

As above, I find that the chance the applicant would experience violence or physical harm from these extortionists is remote and I find there would not be a real chance that the applicant would suffer serious harm on return to Sri Lanka.

61    Fairly read, so the appellant submits, these passages indicate that the Authority purported to deal with the appellant’s claim of a well-founded fear of persecutory harm from extortionists merely by assessing whether the appellant faced a real chance of physical harm, that is, whether there was a real chance that the extortionists would “make good” on any physical threats associated with the extortion. The appellant submits that in assessing his claims against the complementary protection criteria, the Authority simply transposed these findings ([21]).

62    The appellant says that the Authority having found that it “cannot discount” that the appellant would face continued extortion, had then to consider whether that extortion, not just physical harm that might arise from it, posed a real chance or risk of serious or significant harm pursuant to ss 36(2)(a) and (aa), and in the case of s 36(2)(a), whether the extortion of the appellant bore the requisite nexus with the relevant Convention. But the appellant submits that this task required the Authority to consider the appellant’s claims against the indicia of ‘serious harm’ and ‘significant harm’ in the Act (ss 5J(5) and 36(2A)). The appellant says that these indicia extend well beyond physical harm. Moreover, he says that to satisfy them, it is not necessary that an extortionary threat (physical or otherwise) be carried out. Therefore he submits that the Authority effectively failed to consider the appellant’s claims, or failed to correctly apply the relevant statutory criteria in assessing these claims.

63    We would reject this ground as well for the following reasons.

64    It may be accepted that some care may be required in dealing with claims of extortion. In particular, it is necessary to determine the underlying basis of the claimed extortion.

65    In this case, the Authority accepted that it was plausible that the appellant had been the subject of extortion threats because he was a successful goldsmith. Further, the Authority referred to country information indicating that paramilitary groups have resorted to criminal activities and extortion to raise funds ([10]).

66    But the Authority also found that there had been a significant change in Sri Lanka since the appellant had departed ([10]). The Authority accepted that Tamils in the past had concerns about engaging with the authorities, but placed significant weight on the improved security situation since 2012. There were indications that paramilitary groups had renounced their paramilitary activities, although there were credible reports that these groups continued to be active in criminal activity. Accordingly, given those credible reports, the Authority could not discount that the appellant could continue to be subject to extortion on his return if he continues to work as a goldsmith. But the Authority considered that the weakening of paramilitary groups and their renunciation of paramilitary activities, their move into the mainstream, and the prosecution of those groups by the police for past crimes, meant that the chance that the appellant would face violence or physical threat was remote ([11]).

67    As to the appellant’s contention that the Authority failed to consider whether the extortion (not just the physical harm) might amount to “serious harm” or “significant harm”, the Authority’s reasons respond to the claims as put by the appellant that various groups had threatened to kidnap him or kill him if he did not pay them money. The Authority found at [11] that there was only a remote risk of that occurring if the appellant returned to Sri Lanka.

68    The appellant did not put a separate claim to serious harm or significant harm based upon extortion with the mechanics for its execution involving a non-violent threat. The threat of extortion that the Authority was considering in the present case was extortion based upon physical threats, that is, the type of extortion claimed by the appellant and raised by the evidence. The appellant’s attempt to split the extortion from its mechanics (i.e. the threat of physical violence) is artificial.

69    Further, as to any difference between harm being the risk of the making of the threat to do physical violence and the harm being the risk of the physical violence being carried out, then the Authority’s implicit finding that there is a lesser chance of extortion (“I cannot discount…” at [11]) entails a lesser chance of the harm being carried out. Further, a perceived lesser chance of the threat being carried out is a less impactful attempt at extortion. Generally, it seems to us that the Authority’s findings at [10] and [11] when read in context were to the effect that there was a lesser chance of extortion with physical threats and a lesser chance of physical harm.

70    Further, in the case of the refugee claims, the Authority’s findings at [10] make clear that the past extortion of the appellant was to obtain financial advantage, and was not for a Convention-based reason. The Authority rejected the claim that the extortion threats in 2012 were by the CID and that the CID were concerned with the appellant’s participation in protests ([13]). Further, the Authority did not find that the appellant was subject to extortion by reason of being a Tamil, but rather because he was a successful goldsmith. There was nothing of substance in the appellant’s claims which suggested that a Convention reason was an essential or significant reason for the extortion (ss 5J(1)(a) and (4)(a)).

71    Further, in the case of the complementary protection claims, extortion of the type claimed by the appellant would only come within the definition of “significant harm” in s 36(2A) if it involved violence or other physical threat, which of course was the basis of the threats to the appellant. Section 36(2A) provides that:

(2A) A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

72    But such an extortion claim was properly considered by the Authority. There is no error in the Authority’s reasons.

73    In summary, no jurisdictional error is established and no error in the primary judge’s determination to reject this ground is made out.

(c)    Ground 3: Findings on appellant’s illegal departure – illogicality and unreasonableness

74    The appellant points out that the Authority found that the appellant may be questioned, arrested, charged, remanded and fined as an illegal emigrant under the IEA. In considering the implications of these eventualities for the appellant, the Authority reasoned ([17] and [18]):

Returnees may be arrested and charged under the [IEA] and remanded in custody at the airport or at a prison, while waiting to be brought before a magistrate. This remand period would normally be twenty four hours but may be up to four days… If a person pleads guilty, they will be fined and discharged. Returnees who plead not guilty are immediately granted bail on personal surety, though they may be required to have a family member act as guarantor. …

I accept that it is likely that on return the applicant will be charged under the [IEA], fined and released, or, should he plead not guilty, he will be released on his own personal surety.

75    Further, assessing these facts against the complementary protection criteria, the Authority reasoned ([26] to [28]):

I accept that the applicant will be identified on return as a person who departed illegally and as an asylum seeker and that there is a real risk that the applicant will be investigated and detained for several hours at the airport, potentially detained on remand for some days pending bail, and then fined. …[E]ven if the applicant is required to spend a short period of time in prison while waiting to appear before a magistrate, I am not satisfied that he will face significant harm as defined. DFAT states that it is aware of a small number of allegations of torture and mistreatment [of] asylum seekers who have been returned… I am therefore not satisfied that there is a real chance that the applicant would be subjected to mistreatment during any possible brief period in detention on re-entry to Sri Lanka.

…I accept that the applicant may be subjected to poor prison conditions during any possible brief period of detention but… the evidence does not indicate there is an intention to inflict pain or suffering or extreme humiliation.

I have also accepted that the applicant will be questioned, charged and fined under the [IEA] with the offence of leaving Sri Lanka illegally and fined as a result but that he is unlikely to face a custodial sentence. I am not satisfied that such questioning, or the imposition of a fine on the applicant amounts to significant harm under ss.36(2A) and 5 of the Act.

76    The appellant submits that it is apparent from the Authority’s reasoning that the Authority’s finding that the appellant did not face a real risk of significant harm, and a fortiori its finding that any harm suffered in prison would not arise from intention ([27]), was predicated on its finding that he would be able to secure bail and pay a fine, and thus would avoid a protracted period in custody. Further, and with respect to bail in particular, he submits that the Authority’s finding that the appellant will be able to get bail must be thought to entail the antecedent finding that a member of his family would stand as guarantor for that purpose.

77    But the appellant submits that these findings were not logically open on the evidence before the Authority. He says that there was no evidence before the Authority as to whether the appellant would have sufficient means on his return to Sri Lanka to pay a fine. Indeed, he says that his undisputed claims that he left Sri Lanka because he was unable to pay the extortionists, and that he may be extorted upon return, militate against the finding that he would have sufficient means. Nor, so the appellant submits, was there evidence before the Authority as to the capacity or willingness of anyone in the appellant’s family to act as a guarantor.

78    Further, the appellant says that the delegate’s reasons do not address the appellant’s capacity to pay a fine, or the capacity of a family member to stand as guarantor. The delegate’s reasons are largely confined to general information about the Sri Lankan legal system, rather than the particular circumstances of the appellant. Nor, so the appellant says, during the course of the interview was the appellant asked whether he had the capacity to pay a fine, or whether a family member could act as guarantor. He says that there was mention of the possible imposition of a fine only once and in a general manner, ‘rolled-up’ with country information, in circumstances where the appellant was unrepresented and communicating through an interpreter. That being so, the appellant says that this is not a case where the appellant’s silence on these matters might constitute a logical basis for the findings that were made.

79    Further, he says that the primary judge did not grapple with the appellant’s argument as it relates to the capacity to pay any fine imposed. The primary judge also purported to distinguish the decision of Charlesworth J in ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 but the appellant says that the primary judge offered little explanation for doing so.

80    Further, as to the Minister’s notice of contention asserting that the primary judge should have found that the Authority did not make a finding on the appellant’s illegal departure claim for which it had no evidence, but even if it did so that error was not jurisdictional, the appellant says that the Authority’s error was material. He says that different findings about the appellant’s capacity to pay any fine imposed or to have a family member stand as guarantor may in turn have yielded findings about the prospect of harm faced by the appellant associated, for example, with a longer period in detention or an inability to pay any fine imposed.

81    In our view this ground of appeal is not made out and nor has the primary judge been shown to be in error in failing to find jurisdictional error, whichever label of “illogicality”, “irrationality” or “unreasonableness” one uses.

82    In our view, there is no illogicality or irrationality established in the fact finding approach taken by the Authority and the secondary conclusions drawn therefrom. Let us make some general points.

83    First, the use of expressions such as “illogicality” or “irrationality” may be no more than to strongly emphasise disagreement with someone else’s process of reasoning on an issue of fact (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J). But that does not in and of itself establish jurisdictional error.

84    Second and relatedly, the use of such expressions may be little more than a contrivance to shoehorn arguments about the merits of the Authority’s conclusion into the category of jurisdictional error, but that is to descend into impermissible merits review.

85    Third, differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said at [131]:

The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or 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 a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

86    Moreover, at [135] their Honours continued:

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.

87    Fourth, the weight that the Authority accorded to each aspect of the evidence was a matter for it to determine in the light of the evidence and submissions before it. Questions of weight per se are not amenable to judicial review (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Kiefel and Downes JJ agreeing); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J).

88    Fifth, some probative material or other logical basis for a fact finding by the Authority was sufficient. The Authority was not obliged to uncritically accept evidence or a submission made by the appellant.

89    It is convenient to begin with identifying the Authority’s findings.

90    The Authority accepted that the appellant departed Sri Lanka illegally. It referred to DFAT reports that in practice, people who are passengers in a people smuggling venture are not given a custodial sentence, and that the fines imposed are generally between 5 and 50,000 Sri Lankan rupees (SLR) ([16]). It found that returnees may be remanded at the airport or in a prison until they are brought before a magistrate. If a person pleads guilty, they will be fined and discharged. Returnees who plead not guilty are immediately granted bail on personal surety, although they may be required to have a family member act as guarantor ([17]).

91    The Authority accepted that it was likely that the appellant on his return would be charged under the IEA, and fined and released, or if he pleaded not guilty released on his personal recognizance. The Authority found that there was no real chance that the appellant would be given a custodial sentence. Further, the Authority was not satisfied that the imposition of a fine would constitute serious harm, and found that if the appellant were to have difficulty meeting the cost there was scope to request that the fine be paid by instalments ([18]).

92    The Authority accepted that the appellant may be detained for a period of up to four days until his matter was presented to a magistrate. But it found that this short period of detention would not amount to serious harm. In any event, it found that the procedures under the immigration laws were applied on a non-discriminatory basis under a law of general application, and did not constitute persecution within ss 5H(1) and 5J(1) ([20]).

93    The Authority also found that the period of detention pending bail did not amount to significant harm. It was not satisfied that there was a real chance that the appellant would be subject to any mistreatment if and while he was being detained ([26]). Therefore he would not be subject to the death penalty, arbitrary deprivation of life or torture. Further, there was no intention to inflict pain or suffering or extreme humiliation. Therefore, the Authority found that the poor prison conditions would not amount to significant harm ([27]). In addition, the Authority found that the questioning of the appellant or the imposition of a fine would not amount to significant harm ([28]).

94    Now as we have indicated, legal irrationality is a demanding standard. In the present case the appellant has not met that standard.

95    In the present case, the Authority found that the appellant could be detained for up to four days until his matter could be dealt with. But as we have said, if the appellant pleaded guilty, he would be fined and released. If he pleaded not guilty, he would likely be released on his own personal recognizance; but possibly though in such an eventuality he might require a guarantor.

96    As to the quantum of fines, the Authority made a finding that the usual fine was generally between 5 to 50,000 SLR. By way of comparison, as we have said, in order to satisfy the extortionists the appellant had previously paid 10 lakhs, which amounts to 1,000,000 SLR. Moreover, the Authority also found that if the appellant were to have difficulty meeting the fine, he could request to pay in instalments. In our opinion, these findings clearly and cogently addressed the appellant’s financial capacity to pay a fine. There was nothing whatsoever in the material to suggest that if the appellant did not pay the fine he would be later jailed.

97    Further, as to a family member acting as a guarantor, contrary to the appellant’s submission the Authority did not make any assumption that a family member would act as guarantor. The country information was that the appellant may be required to have a family member act as guarantor and that is all the Authority said. The question of whether a family member would act as guarantor was not critical to the Authority’s decision (SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [79] per Robertson and Kerr JJ).

98    On the question of the guarantee, the Authority was dealing with a triply contingent hypothetical. First, the appellant had to plead not guilty. If he pleaded guilty, he would be fined, with the fine able to be paid by instalments; no guarantee question would arise. Second, if he pleaded not guilty, he could be released on his own personal recognizance. In that eventuality, no guarantee would be required. Third, the guarantee question would only arise if he pleaded not guilty and his own personal recognizance was not sufficient. Now in that eventuality, and given that no immediate payment of money would be required from a guarantor, it might be expected that a family member may act as guarantor to secure the appellant’s release. But all of this is in the realm of a hypothetical which the Authority did not need to speculate about or discuss in detail.

99    It is appropriate to deal with another point.

100    In our view the primary judge was correct to find that ABA15 was distinguishable. In the present case the Authority’s finding was that a family member may have to act as guarantor, not that a family member “is also required” to act as guarantor as discussed in ABA15 (at [46], [49], [50] and [52]). Therefore, any implicit finding about whether a family member would act as guarantor was not a critical step in the Authority’s reasons (cf ABA15 at [53], [57] and [58]). But in any event ABA15 may go too far. In particular, it may not be necessary for a decision-maker to have positive evidence that a family member is willing to act as guarantor for a person (cf ABA15 at [52]). Rather, if there is evidence that a person has family in the country of return, a decision-maker may permissibly reason that a family member may be prepared to act as guarantor (if that is required), unless the person puts forward reasons why the family member cannot or will not do so. But to so reason may first require that the decision maker has put the person on notice as to the guarantee question.

101    Further and in the alternative, even if there was any implicit finding that a family member could act as guarantor, this is not a critical finding because the Authority’s finding was only that a family member may be required to act as guarantor. Therefore, even if that implicit finding were in error, there would not be any realistic possibility that the Authority would have reached a different decision absent the error.

102    Generally, we consider that the Authority’s treatment of the guarantee question is unremarkable in the generality with which it has been expressed.

103    Finally, and as the Minister pointed out, the Authority gave independent reasons for rejecting the appellant’s claims on this point. With refugee claims, it found that the brief period of detention would not amount to “serious harm”. Further, it found that detention under immigration laws is pursuant to a law of general application applied in a non-discriminatory manner, meaning there was no “persecution” ([20]). With complementary protection, it again found that the appellant would only be detained for a short time ([26]). The death penalty, arbitrary deprivation of life and torture were not relevant in circumstances where possible poor prison conditions during any possible brief period of detention would be due to overcrowding, poor sanitation and lack of resources ([27]), and there was no intention to inflict pain, suffering or extreme humiliation. Further, the finding that detention would only be for 3 to 4 days did not depend on whether there was a guarantor. Accordingly, based on this short detention, the prison conditions could not amount to “significant harm” within s 36(2A) ([27]). Such findings provide an independent basis for the Authority’s rejection of the appellant’s claims concerning his illegal departure from Sri Lanka.

(d)    Ground 4: Failure to exercise s 473DC(3) power

104    The appellant says that the Authority had power under s 473DC(3) to get new information from the appellant. And he says that it was obliged to exercise that power reasonably. He says that the Authority’s failure to exercise that power to get information from the appellant as to the capacity of a family member to be guarantor and his capacity to pay a fine was legally unreasonable in circumstances where the delegate had failed to properly address or provide the appellant with an opportunity to comment on these matters, and where evidence on these matters was required to logically support the Authority’s findings as to whether the appellant faced a real risk of significant harm.

105    We would reject this ground as well.

106    The standard of legal reasonableness applicable to the exercise of a statutory power takes its content and boundaries from the text, context, subject matter and purpose of the particular statutory provisions under which the particular or general power is being exercised (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).

107    As Li indicates, the exercise of power must be “legal and regular, not arbitrary, vague and fanciful” (at [65] per Hayne, Kiefel and Bell JJ). A lack of legal reasonableness may be concluded from an exercise of power “which lacks an evident and intelligible justification” (at [76]). It may also be concluded from “an obviously disproportionate” response or exercise of power in the particular circumstances (at [74]). French CJ explained that it may be concluded from “a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut … [or exceeding] what, on any view, is necessary for the purpose it serves” (at [30]). Contrastingly, Gageler J applied the test of Wednesbury unreasonableness, but did not reason to the effect that a lack of an evident and intelligible justification or an obviously disproportionate exercise of power could not in an appropriate case be a manifestation of or establish Wednesbury unreasonableness.

108    This Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 has also emphasised two points. First, it is not appropriate merely to take the scenario in Li and address factual similarities or differences (at [41] and [42] per Allsop CJ, Robertson and Mortimer JJ). In each context in which it is to be assessed, legal unreasonableness is invariably fact dependent (Singh at [42] and [48]). Whether a particular exercise of statutory power or its lack of exercise descends into legal unreasonableness necessitates a careful evaluation of the evidence and its context in the particular application for judicial review (at [42]). Second, if the decision maker has given reasons for the relevant exercise of power or lack of exercise under challenge, then it is to those reasons “which a supervising court should look in order to understand why the power was exercised as it was” (at [47]). More generally, the intelligible justification may be found within the reasons explicitly or implicitly for its exercise or its lack of exercise.

109    Further, applying a standard of legal reasonableness does not merely involve or justify substituting this Court’s view as to how a discretion should be exercised for that of the decision maker (Li at [66]).

110    In summary, to demonstrate legal unreasonableness is a demanding standard and requires its demonstration against the statutory framework for making the decision to exercise or not exercise the relevant power. In the present context the scheme of Pt 7AA is such that save for limited circumstances, the Authority conducts its review on the papers (s 473DB(1)), and without accepting or requesting new information or interviewing the referred applicant. The Authority has power to invite the referred applicant to give new information (s 473DC(3)), but it does not have any duty to get, accept or request new information (s 473DC(2)). And the Authority will only consider new information if there are exceptional circumstances to justify doing so (s 473DD(a)) and providing of course that one of the limbs in s 473DD(b) is made out. A more detailed discussion of the structure and provisions of Pt 7AA is set out in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [1] and [15] to [35] per Gageler, Keane and Nettle JJ. It is unnecessary to further distil or summarise what is there set out.

111    We are not satisfied that there has been any unreasonable failure to consider exercising or failing to exercise the s 473DC(3) power. Moreover, any failure to do so was not material to the Authority’s decision.

112    As we have said, the Authority found only that a family member may be required to act as guarantor. Accordingly, the question of whether a family member would act as guarantor was not of sufficient significance to the Authority’s decision such as to consider exercising or in fact exercising the s 473DC(3) power.

113    Further, as to the question of the fine, at the interview of the appellant the delegate raised with the appellant the possibility of finding that the only consequence of departing Sri Lanka illegally was a fine, pursuant to a law of general application. The appellant did not seek to make any further submissions to the delegate or, having seen the delegate’s decision, seek to put new information to the Authority. Moreover, this is not a situation where the course of decision-making before the delegate entailed that unless the Authority exercised the s 473DC(3) power to get further information, it was disabled from performing its review function. Further, the present case is not even close to the type of scenario addressed in cases such as Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82] and Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 at [81]. In the present case we are not dealing with a direct and central question such as relocation. Indeed, in relation to the guarantee question we are dealing with the potentiality of a family member to act as a guarantor on a compounded hypothetical.

114    We would reject ground 4. No jurisdictional error has been established and her Honour was not in error for failing to so find.

(e)    Conclusion

115    It follows from what we have said that the appeal must be dismissed with costs.

Associate:

Dated:    31 May 2019