FEDERAL COURT OF AUSTRALIA

SZSQL v Minister for Immigration and Border Protection [2015] FCA 294

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to file a notice of appeal be refused for:

a.    grounds 1 and 2 of the proposed notice of appeal;

b.    grounds 3, 4 and 5 of the proposed notice of appeal insofar as those grounds allege that the assessor made an error of law by failing to deal with a component integer of the applicant’s claim;

c.    ground 3(a) of the proposed notice of appeal;

d.    grounds 4 and 5 of the proposed notice of appeal insofar as those grounds allege that the assessor made an error of law by making a finding that was manifestly illogical or unreasonable; and

e.    ground 5 of the proposed notice of appeal insofar as that ground alleges that the assessor made an error of law by making a critical finding in the absence of evidence.

2.    Otherwise, the application for an extension of time within which to file a notice of appeal be allowed.

3.    Costs of the application be costs in the appeal.

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

REASONS FOR JUDGMENT

1    This is an application pursuant to rule 36.05 of the Federal Court Rules 2011 (Cth) (“Rules”) for an extension of time within which to file a notice of appeal from a judgment of a judge of the Federal Circuit Court (“FCC judge”) delivered on 13 December 2013: SZSQL v Minister for Immigration and Border Protection [2013] FCCA 2158. In that decision, the FCC judge dismissed the applicant’s application for judicial review of the recommendation made by the second respondent (“assessor”) not to recognise the applicant as a person to whom Australia owes protection obligations. The assessor’s recommendation was made on 10 October 2012.

Background

2    The applicant is a Tamil male citizen of Sri Lanka born on 30 January 1985. He arrived at Christmas Island by boat on 1 December 2011.

3    By reason of his mode of arrival, the applicant is an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth) (“Migration Act”). Consequently, s 46A(1) of the Migration Act prevents the applicant from making a valid application for a visa unless the first respondent (“Minister”) makes a determination under s 46A(2) allowing him to do so, having formed the view that it is in the public interest.

4    On 4 February 2012, the applicant made a request for “Protection Obligations Evaluation”. That is a process that results in a recommendation to the Minister as to whether an applicant is owed protection obligations, for the purpose of the Minister considering whether to make a determination under s 46A(2). The recommendation was required to be made according to the criteria and principles identified in the Migration Act as construed and applied by the courts of Australia: Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at [87]-[89].

5    An officer of the Department of Immigration and Border Protection (“Department”) evaluated the applicant’s claims and rejected them. The applicant’s claims were then referred to the assessor for independent assessment. On 10 October 2012, the assessor made a recommendation that the applicant not be recognised as a person in respect of whom Australia has protection obligations or as a member of the same family unit as such a person. The assessor’s reasons for the recommendation were set out in a report entitled “Independent Protection Assessment”.

Proceedings before the FCC

6    By application dated 30 January 2013 and filed on 7 March 2013 the applicant sought judicial review of the assessor’s decision. There was one ground of review in the application, namely that the assessor’s recommendation “was affected by legal error”. The applicant appeared in person at the FCC hearing.

7    In summarising the applicant’s claim, the FCC judge noted the following matters:

    From May 2009 to October 2009 the applicant lived in the Seven Four Refugee Camp in Sri Lanka with his parents and his older and younger brothers. Shortly after the family arrived at the refugee camp, the applicant and his older brother, together with other young men, were questioned by members of the Sri Lankan Army about their possible involvement with the Liberation Tigers of Tamil Eelam (“LTTE”). Members of the Army also searched the bodies of the applicant, his older brother and the other young men for evidence of injuries or scars;

    The applicant’s older brother had worked until 2008 as a mechanic at a workshop near Kilinochchi which was managed or owned by a member of the LTTE. In about August 2009, the applicant’s older brother was arrested and detained. This alarmed the applicant’s parents and, wishing to prevent the same fate falling on the applicant, arranged to pay a bribe to a paramilitary group known as Karuna (“Karuna Group”) to secure the applicant’s release from the refugee camp and to assist the applicant to leave Sri Lanka. Members of the Karuna Group arranged to obtain a passport and a visa for the applicant, and arranged to transport the applicant from the camp to Colombo. The applicant travelled to Bangkok where he stayed for a few days. He then travelled to Malaysia and, from there, to Indonesia;

    The applicant claimed he feared persecution if he were to return to Sri Lanka for a number of reasons. First, because he left the refugee camp without the government’s permission, he would have to explain on his return how he did that, and this would lead him to disclose he had been assisted by the Karuna Group. Secondly, he feared he would face the same fate as his brother. He claimed that, after he left, the army had returned to the refugee camp looking for him, and the army continued to regularly make enquiries of the applicant’s parents as to the applicant’s whereabouts after his parents had been released from the camp. Thirdly, the applicant claimed that the Sri Lankan government regarded all Tamils who travelled to Australia by boat as members of the LTTE.

8    The FCC judge noted that the assessor accepted that the applicant’s brother worked at a garage workshop which was owned by a LTTE cadre; that in August 2009 the applicant’s older brother was arrested and taken from the camp and detained for fourteen months; that the applicant left Sri Lanka in October 2009 because he and his family feared that he may be arrested, and that the applicant had a subjective fear that he would be persecuted for the reason of an imputed political opinion that he was associated with the LTTE. However, the FCC judge noted that the assessor concluded that the applicant’s subjective fear was not well founded for the following reasons:

1.    The assessor found that the applicant was not under any suspicion by the authorities at the time he left the refugee camp in September 2009; had he been under suspicion he would have been arrested at the time his older brother was arrested.

2.    The brother’s release from detention in 2010 indicates that the authorities were satisfied that the applicant’s brother posed no security threat as a consequence of his past employment with a LTTE business.

3.    None of the applicant’s claimed circumstances encompass any of the activities identified by country information as leading the authorities to impute a person as being an LTTE supporter.

4.    The current UNHCR guidelines state that, in light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of Sri Lanka.

5.    The applicant did not have a well-founded fear of persecution or harm on account of the authorities considering him to be associated with the LTTE because he went to Australia by boat. Although the applicant had identified instances where returnees had been arrested, the returnees were arrested on criminal charges, and this did not satisfy the assessor that the Sri Lankan authorities consider all persons who go by boat to Australia are members of or associated with the LTTE.

6.    The assessor did not accept that the applicant would face harm from the authorities or the Karuna Group because of the method by which he left the camp in October 2009. That was so because the assessor found the applicant had left Sri Lanka on his own passport with a one month tourist visa for Malaysia and, therefore, the applicant had left Sri Lanka lawfully. That ,in turn, suggested to the assessor that, at the time of his departure, the applicant was not a person of interest to the authorities. Further, the assessor relied on the “marked change in the attitude by the Government towards Tamils from the north as reflected in the UNHCR’s superseded 2009 Guidelines”.

9    The FCC judge noted the applicant’s confirmation that the facts in relation to his claim for a protection visa were the facts that had been put to the assessor. His Honour then recorded the submissions of the applicant as follows, at [13]-[14]:

After I suggested to the applicant that he needed to address the decision or recommendation of the Assessor and why that decision was not made according to law, the applicant made a number of submissions. First, the applicant submitted that “the reasoning of the independent protection assessor is incorrect in that all evidence points to one direction, but the evidence of the assessor points to different direction”. I asked the applicant whether it was his contention that the Assessor made the recommendation she did in the absence of any evidence to support it. The applicant responded:

He [sic] has not got into my shoes to understand the atrocities I had faced in the past and the things that would happen to me in the future. I could only put to her the claims the way I was able to put to her.

Secondly, the applicant submitted that the Assessor made an error in law “because the decision . . . is not concerned with the claims I have put to the assessor”.] The applicant further submitted that the Assessor “has not taken into consideration all the claims I put to her”. In support of this submission, the applicant said:

I have referred to her about my elder brother and the problems he had, and I also spoke about being associated with my elder brother. And the independent protection assessor has taken an arbitrary decision at the end.

10    Under the heading “Jurisdictional error?”, the FCC judge addressed each of those submissions. As to the first, his Honour found it to be “no more than a submission, emphatically expressed, that the [assessor] was incorrect to conclude that the applicant did not have a well founded fear of persecution”. His Honour rejected the submission, to the extent that it was made, that the assessor arrived at her conclusions in the absence of any evidence, saying that the evidence referred to by the assessor and set out in the FCC’s reasons was reasonably capable of supporting the assessor’s conclusion that the applicant’s fear of persecution was not well founded.

11    As to the second submission, the FCC judge was satisfied that the assessor had considered the applicant’s claims, including so much of the claims that relied upon the circumstances of the applicant’s elder brother. His Honour noted that the assessor regarded the arrest of the applicant’s brother, but not of the applicant, as a reason for concluding that the authorities did not have any interest in the applicant. His Honour also noted that the assessor regarded the release of the applicant’s brother as a reason for concluding that the applicant’s brother was no longer regarded as a security risk.

12    His Honour concluded:

The applicant has not demonstrated that the Assessor arrived at her recommendation as a result of any jurisdictional error. There is nothing in the Assessor’s reasons for decision or in the material that is before the Court that suggests that the Assessor undertook her tasks other than according to law.

Principles governing extension of time

13    The application for an extension of time to file a notice of appeal was lodged on 18 July 2014.

14    The last date for filing a notice of appeal was 27 January 2014: Federal Court Rules 2011 (Cth), rr 1.61, 36.03(a)(i). The applicant therefore requires an extension of approximately six months.

15    The decision to grant an extension of time to appeal is a discretionary one: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28]. The relevant considerations are:

(1)    the reasons for the delay. The Court must be satisfied that it is proper to grant an extension of time, noting that the prescribed period is not to be ignored;

(2)    any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension;

(3)    the merits of the proposed appeal: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [19] (“SZQCZ”); WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]; DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28].

Delay

16    The delay in this case is significant. However, the Minister does not submit that the application ought to be refused by reason of the delay. His position is that the application should be dismissed because the proposed grounds of appeal are wholly without merit.

Prejudice

17    There is no suggestion of any prejudice to the respondents if an extension of time were granted.

Merits of the proposed appeal

18    The applicant is now legally represented. He seeks leave to raise new grounds on the appeal if an extension of time to appeal is granted. In determining whether to grant leave to raise a new ground, a relevant (although not the only) factor is the merit of the point now sought to be raised: cf VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]; Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [165] and [166].

19    Accordingly, it is necessary to examine the merits of the proposed grounds of appeal both for the purpose of deciding whether to grant an extension of time to file a notice of appeal, and also whether leave should be granted to raise the grounds identified in the proposed notice of appeal.

Relevant legal principles

The requirement to deal with a component integer of the applicant’s claim

20    A failure to make a finding on “a substantial, clearly articulated argument relying upon established facts” can amount to a failure to accord procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55].

21    In Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at 259 [42], the nature of the review function under s 414 of the Migration Act was described by Allsop J (as he then was), with whom Spender J agreed, as follows:

The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration.... It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act... make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.

22    This passage makes it clear that the requirement to deal with a component integer of a claim overlaps with the requirement to take into account relevant considerations, discussed below.

23    The distinction between a claim and the evidence in support of that claim is not a “bright line” distinction: SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24]. In that case, Selway J said at [24]:

Significant aspects of the claim are likely only to be revealed in the evidence or information put before the Tribunal by the applicant. In such circumstances the difference between the claim itself and the evidence supporting it will often be blurred at least where the relevant factual issue involves an essential step in the applicant satisfying the Tribunal that he or she is a refugee: see Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 at [79] per Allsop J (with whom Heerey J agreed) and see discussion of the relevant principles by Weinberg J in Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533.

24    In any event, as explained below, a failure to consider evidence may amount to reviewable error.

The requirement to take into account relevant considerations

25    In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, Robertson J said (at [111]):

In my opinion there is no clear distinction in each case between claims and evidence: SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24]….The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

26    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]-[47], the Full Court addressed the role of the Refugee Review Tribunal (“RRT”) in reviewing a decision to refuse a protection visa application:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and 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 of a court of law.

The inference that 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 of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on 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 delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

27    Thus, where it is argued that the decision maker has failed to take into account relevant material, the critical question is the importance of the material to the decision and whether, in view of that importance, the Court should infer from the absence of reference that it had not been considered.

Failing to lawfully form the requisite state of satisfaction

28    In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 at [38], the Full Court stated that the formation of the requisite state of satisfaction “could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant”. At [49] and [50], the Court stated:

The court is entitled to take the reasons of the tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].

… the Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

Making a critical finding in the absence of evidence

29    The making of a finding which is a critical step in the decision-maker’s ultimate conclusion in the absence of evidence may amount to legal error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402 at [19].

30    The fact of which there is said to be no evidence must be a jurisdictional fact, that is “an essential preliminary to the decision-making process” as distinct from “a fact to be adjudicated upon in the course of the inquiry: VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851; (2006) 154 FCR 302 at [19], citing Colonial Bank of Australia v Willan (1874) LR 5 PC 417 and VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388; (2005) 146 FCR 562.

31    In WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139, the Full Court said at [11] and [12]:

Counsel referred to the principle that an administrative decision maker makes a jurisdictional error if he or she bases a decision upon a finding of fact which lacks any supporting evidence.

There is no doubt about the existence of that principle. However, it is difficult to apply it to a rejection of evidence. After reviewing the relevant case law up to that date, in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150, Wilcox J said that all of the cases of which he was aware, in which ‘no evidence’ was treated as a separate ground of invalidity, ‘were cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact’. We are unaware of any later case that departs from that pattern.

32    At [17], the Full Court concluded that the “no evidence” ground did not apply to a finding that a portion of the appellant’s evidence was inherently improbable.

Making a manifestly illogical or unreasonable finding

33    Illogicality or unreasonableness in fact finding may give rise to an error of law where the relevant fact is a jurisdictional fact: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] to [132]. In that case, Crennan and Bell JJ said at [131]:

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. 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.

34    In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12, Gummow and Hayne JJ said at [38]:

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.

35    In SZMDS, Crennan and Bell JJ said at [130]:

…accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. …

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.

Grounds of proposed appeal

36    The proposed notice of appeal contains six grounds. The sixth ground was not pressed at the hearing of the application.

Grounds alleging failure to deal with a component integer of the applicant’s claims

37    This failure is alleged by grounds 2, 3, 4 and 5 of the proposed notice of appeal. In my view, this characterisation of the alleged errors is not plausible because an examination of the assessor’s reasons shows that the assessor dealt with each integer of the applicant’s claims including, in particular:

(a)    Whether the applicant was under suspicion of links with the LTTE when he fled Sri Lanka;

(b)    Whether the applicant would be under suspicion of links with the LTTE if he returned to Sri Lanka;

(c)    Whether the applicant was at risk of harm on his return to Sri Lanka, either because of suspected links with the LTTE or simply as a returned asylum seeker or simply as a young single Tamil male.

38    Ground 2 concerns whether the assessor addressed the applicant’s claims about how he departed Sri Lanka in the context of deciding whether he was under suspicion of links with the LTTE when he fled Sri Lanka. Those claims, even if accepted in their entirety, could not have led to a conclusion that the applicant was under such suspicion.

39    Grounds 3, 4 and 5 concern whether the assessor addressed country evidence said to be relevant to the applicant’s risk of harm on his return to Sri Lanka, including the likelihood that he would be suspected of links with the LTTE. While there may be no bright line between component integers of claims and evidence of claims, in my view, this information does not fall within any grey area. This information is plainly in the nature of evidence.

40    Accordingly, in my view, the various alleged errors comprising failure to deal with component integers of the applicant’s claim are misconceived and no extension of time should be permitted to enable an appeal on those aspects of grounds 2, 3, 4 and 5.

Grounds alleging making a manifestly illogical or unreasonable finding

41    This failure is alleged by grounds 2, 4 and 5 of the proposed notice of appeal. In my view, the allegation is misconceived.

42    In the case of ground 2, the complaint is that the assessor should not have found that it was implausible that the applicant was able to leave Sri Lanka in late 2009 if he was under suspicion by local authorities (“departure finding”). This was an expression of opinion about the plausibility of the applicant’s version of events. No doubt the fact that the applicant claimed to have been able to depart because of the assistance of the Karuna Group was a matter that might have affected the assessor’s view about the plausibility of this aspect of the applicant’s version of events. However, it need not have. It was not irrational for the assessor to have considered that the applicant’s ability to leave Sri Lanka when he did was a matter that was likely to have been affected by whether or not he was under suspicion by local authorities. Contrary to what seemed to be suggested by the applicant, the assessor’s opinion did not entail an assumption that no person under suspicion by local authorities was able to leave Sri Lanka by aeroplane in late 2009.

43    As to ground 4, the substance of the applicant’s complaint is that the assessor disregarded country evidence in an Amnesty International submission about the likelihood of a person in the applicant’s position being suspected of LTTE links by Sri Lankan authorities. The significance was that the assessor’s conclusion that the applicant did not have a well-founded fear of persecution was based on her finding that Sri Lankan authorities would not suspect the applicant of such links and, therefore, he would not be at risk of serious harm on his return to Sri Lanka. The assessor set out reasons why she found that Sri Lankan authorities would not suspect the applicant of LTTE links, albeit it is not clear that those reasons addressed the evidence in the Amnesty International submission. Her conclusion was open on the evidence and the inferences she drew. Accordingly, this is not a case in which her finding could be said to be illogical or irrational.

44    Similarly, for ground 5, the substance of the applicant’s complaint is that the assessor disregarded reports of returned asylum seekers who had been detained and tortured upon their return to Sri Lanka, and failed to take into account that the applicant might be perceived to have illegally departed Sri Lanka because he had used a passport and visa illegally obtained from the Karuna Group. However, the assessor’s conclusion that the applicant would not be at risk of serious harm was based upon country information which appeared to support a benign view of the situation for a returnee in the position of the applicant, including information which suggested that those returned asylum seekers who had suffered significant harm were either criminals or persons who would be suspected of links with the LTTE (unlike, according to the assessor, the applicant). Thus, in my view, there is no merit to the complaint that the assessor’s findings were subject to judicial review for illogicality or irrationality.

45    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.

46    Accordingly, in my view, no extension of time should be permitted to enable an appeal on those aspects of grounds 2, 4 and 5.

Grounds alleging no evidence

47    This failure is alleged by grounds 2 and 5 of the proposed notice of appeal. It follows from my reasons above that I do not consider there to be any merit in the contention that the relevant findings are subject to judicial review on the “no evidence” ground.

48    Further, in the case of ground 2, the departure finding was not a critical step in the assessor’s ultimate conclusion, so that this ground of review has no relevant operation.

49    In the case of ground 5, the contention is that there was no evidence for the assessor’s conclusion that the applicant was not affected by one of the risk factors that might have caused him to encounter difficulties with authorities, namely that he had departed Sri Lanka illegally. However, the assessor’s conclusion was based on a finding that the applicant had not departed illegally. Accordingly, the real question sought to be agitated by the applicant is not whether there was no evidence for the relevant finding, but rather whether the assessor had failed to take into account the evidence which might have supported a finding that the applicant’s departure was illegal.

Ground 1

50    The first ground of appeal set out in the applicant’s proposed notice of appeal is:

The court below made an error of law by requiring the appellant to establish that the [assessor] had engaged in jurisdictional error in order to be granted the relief sought.

51    Counsel for the Minister, Mr Hughes, acknowledged that the language of “jurisdictional error” used by the FCC judge was not apposite in the case of a recommendation made in advance of an administrative decision. However, it was submitted that the FCC judge’s identification of the issues articulated before him was not criticised and that the errors alleged, as described by the FCC judge, if made out, would amount to legal error justifying the relief sought.

52    Further, the FCC judge’s final conclusion, that there was nothing in the assessor’s reasons for decision or in the material that was before the FCC that suggested that the assessor undertook her tasks “other than according to law”, correctly addressed the appropriate test.

53    A decision does not involve an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been or might have been different: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 353, 384. The applicant’s application did not identify an error of law which would not properly have been characterised as a jurisdictional error if it had been made by the Minister. Accordingly, the FCC judge’s error in referring to jurisdictional error as the kind of error to be identified was immaterial to his Honour’s decision.

54    Accordingly, in my view, the first ground of appeal has so little merit that the applicant should not be granted an extension of time to file a notice of appeal containing that ground.

Ground 2

55    Ground 2 concerns the assessor’s finding “that it was implausible that, if the authorities in Sri Lanka had any concerns about [the applicant] (and/or his younger brother)…that [the applicant] and his younger brother would have been able to obtain passports and depart Sri Lanka without incident in the latter part of 2009” (“departure finding”).

56    Apart from those aspects of ground 2 that have already been addressed, the applicant alleges that the assessor failing to take into account relevant considerations in making the departure finding, being:

    that he paid a bribe to the Karuna Group so as to, inter alia, go overseas. He claimed that the Karuna Group arranged for his Sir Lankan passport and his visa, and they stayed with him at the airport to ensure that he had a smooth exit;

    that, at the interview before the assessor, when the assessor put to the applicant that his irregular departure from the camp in which he was might not be an issue because of changes in Sri Lanka since he had left in September 2009, the applicant said that he never went to the immigration department to get his passport, the Karuna Group helped him to get his passport, the Karuna Group were present at the airport, and that without their help he would not have got through the airport.

57    There is no dispute that these claims were specifically identified in the assessor’s report.

Nature and context of the Departure finding

58    The relevant finding is in the nature of an evaluation of the applicant’s version of events.

59    The assessor was not required to accept uncritically the applicant’s version of events: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451. Nor was the assessor required to have rebutting evidence available before reaching a conclusion that an aspect of the applicant’s version of events was not plausible: Selvadurai v Minister for Immigration and Multicultural Affairs [1994] FCA 1005; (1994) 34 ALD 347 at 348.

60    In oral submissions, counsel for the applicant, Mr Reynolds, submitted that, if the assessor had considered the applicant’s claims concerning the involvement of the Karuna Group in his departure, then the assessor might not have made the departure finding and, consequently, might not have found that the applicant was not under suspicion from the Sri Lankan authorities of having links with the LTTE when he left the refugee camp in September 2009.

61    In my view, the claims set out in paragraph 56 were not so consequential to the finding that the applicant was not under suspicion that they could be regarded as a mandatory relevant consideration on that issue for the following reasons:

1.    They are not matters which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason;

2.    They are not evidence that the applicant was under suspicion of links with the LTTE;

3.    The only significance of the claims in the context of the question whether the applicant was under suspicion of links with the LTTE is that they might explain how the applicant could have departed from Sri Lanka if he had been under suspicion of links with the LTTE. This was not a material issue to the determination of whether that the applicant had a well-founded fear of persecution;

4.    The departure finding was not a material question of fact: cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [89]. It was one of several findings upon which the assessor drew to conclude that the applicant was not under suspicion from the Sri Lankan authorities of having links with the LTTE when he left the refugee camp in September 2009.

62    Accordingly, in my view, the prospects of ground 2 of the proposed notice of appeal are so weak that an extension of time should not be given for this ground.

Ground 3

63    The aspect of ground 3 that has not so far been addressed is the alleged error of law by the assessor in failing to take into account a relevant consideration.

64    The contention is that, in rejecting the applicant’s claims to being treated any differently to any other returnee, the assessor did not deal with the following matters:

    The applicant’s claim that the Sri Lankan government and the Australian authorities had an information sharing arrangement, through which the applicant might become known to the Sri Lankan authorities upon his return; and

    RRT country advice dated 28 May 2010 (“RRT country advice”), which suggested that it was likely that the applicant would be detained and harmed on arrival at the airport in Sri Lanka.

65    The Minister’s submissions acknowledged that part of the country information put forward by the applicant was evidence of some sort of information sharing between Australian and Sri Lankan authorities about the identity of persons seeking asylum.

66    There is also no doubt that the RRT country advice referred to instances of asylum seekers who were detained and allegedly harmed on their return to Sri Lanka.

67    The question of how the applicant would be treated upon his return to Sri Lanka was central to the assessment conducted by the assessor. As the Minister’s submission points out, the issue of how the applicant would be treated upon his return was considered at paragraphs 98 and 99 of the assessor’s report.

68    The applicant’s case is that the matters set out in paragraph 64 above were not addressed by the assessor in considering that issue.

69    The assessor accepted that the applicant would become known to Sri Lankan authorities upon his return to Sri Lanka as a person who had been removed to Sri Lanka. Specifically, the assessor said:

I find there is nothing more than a remote chance [the applicant] will be detained for anything more than a few hours by authorities at the airport for routine and security questioning/screening, which according to the Immigration and Refugee Board of Canada (2011) is the same process for all persons returning to Sri Lanka. I do not accept in [the applicant’s] circumstances any questioning or security check procedures he is required to complete before clearing immigration control at the airport upon his return to Sri Lanka will involve any of the types of harms enumerated in the non-exhaustive list in subsection 91R(2) of the Act or that the authorities will for any reason seriously harm him as set out in subparagraph 91R(10)(b) of the Act. I find there is not a real chance now or in the reasonably foreseeable future the authorities at the airport (immigration control, SIS and/or CID) will for any reason persecute [the applicant] when he arrives, and his fears arising from the above matters are not well founded.

70    Once it was accepted that the applicant would probably be detained for a few hours for questioning and screening, it was not material whether the Sri Lankan government and Australian authorities had an information sharing arrangement, through which the applicant might also become known to the Sri Lankan authorities upon his return or through which the Australian government may have shared the applicant’s identity details. There was no suggestion that there was any particular information that might be provided to the Sri Lankan authorities apart from the applicant’s identity and the fact that he was a failed asylum seeker.

71    The assessor did not accept that the applicant would face serious harm from Sri Lankan authorities by reason of having claimed asylum abroad. The precise finding was:

None of the information before me indicates, and I do not accept, that arising only from the facts of a person being a Tamil who has lived abroad for any period (extensive or otherwise) and/or someone who has sought asylum in/is returning from Australia (or other Western country), there is systematic and discriminatory conduct on the part of the Sri Lankan authorities which involves serious harm, as set out in subparagraphs 91R(1)(b) &(c) of the Act.

72    The assessor’s reasons do not refer specifically to the RRT country advice. In my view, the RRT country advice could be information of the kind that the assessor said was not before her. It is therefore arguable that the assessor omitted to have regard to that information in making her assessment, and that the information was of sufficient importance that she was obliged to take it into account.

73    Accordingly, in my view, and subject to the question of whether leave should be allowed to raise a new ground of appeal, an extension of time should be granted in relation to this aspect of ground 3 of the proposed notice of appeal.

Ground 4

74    This ground of appeal concerns the assessor’s treatment of a letter from Amnesty International dated 19 July 2012 (“Amnesty International submission”) which annexed a report addressing the issue of arbitrary detention in Sri Lanka of Tamils suspected of being “affiliated” with the LTTE, particularly those with family members with suspected or actual LTTE links, and the risk of torture and mistreatment of failed asylum seekers.

75    The aspects of ground 4 that has not so far been addressed concern the allegations of error of law by the assessor:

(a)    Failing to take into account a relevant consideration; and

(b)    Failing to lawfully form the requisite state of satisfaction.

76    The assessor’s reasons referred to the Amnesty International submission. However, she did not refer to the evidence in the report which casts doubt on the UNHCR’s conclusion (relied upon by the assessor) that there was no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north. The assessor also did not refer to the evidence to the effect that, notwithstanding the UNHCR guidelines, there is a presumption by Sri Lankan authorities that all Tamils who lived in the territory administered or controlled by the LTTE were involved in LTTE activities.

77    Accordingly, in my view, it is arguable that the assessor omitted to have regard to that information in making her assessment that the applicant was not at risk of persecution by reason of a suspicion of LTTE links and was not at risk of persecution solely on the basis that he was a young single Tamil male from the north of Sri Lanka. Further, in my view, it is arguable that this was information the assessor was obliged to take it into account.

78    In my view, it is also arguable that the absence of reference to this evidence in the assessor’s report may reveal a failure to form the state of satisfaction required for the assessment.

79    Accordingly, in my view, and subject to the question of whether leave should be allowed to raise a new ground of appeal, an extension of time should be granted in relation to these aspects of ground 4 of the proposed notice of appeal.

Ground 5

80    Ground 5 concerns the assessor’s treatment of a written submission made in support of the applicant’s claims following his interview (“post-interview submission”).

81    The outstanding aspects of ground 5 required to be considered are the allegations of error of law by the assessor in:

(a)    Failing to take into account a relevant consideration; and

(b)    Failing to lawfully form the requisite state of satisfaction.

82    The post-interview submission referred to evidence to the effect that returned asylum seekers had been detained and tortured upon their return to Sri Lanka (either upon arrival or subsequently).

83    The assessor referred to various items of country information submitted by the applicant’s adviser regarding the treatment of returned asylum seekers. As noted above, the assessor did not accept that the applicant would face serious harm from Sri Lankan authorities by reason of having claimed asylum abroad. However, in reaching her conclusion, the assessor did not explicitly address the various evidence of serious harm suffered or allegedly suffered by returned asylum seekers referred to in the post-interview submission.

84    In my view, it is arguable that the assessor omitted to have regard to that information in making her assessment that the applicant would not face serious harm by reason of being a returning asylum seeker. Further, in my view, it is arguable that this was information the assessor was obliged to take it into account.

85    In my view, it is also arguable that the absence of reference to this evidence in the assessor’s report may reveal a failure to form the state of satisfaction required for the assessment.

86    Accordingly, in my view, and subject to the question of whether leave should be allowed to raise a new ground of appeal, an extension of time should be granted in relation to these aspects of ground 5 of the proposed notice of appeal.

Conclusion

87    In my view, having identified arguable grounds of appeal, in the absence of particular prejudice to the Minister and taking into account the seriousness of the potential consequences for the applicant if a possible error of law is not corrected, it is expedient in the interests of justice that the applicant should be granted leave to appeal on those arguable grounds even though they were not agitated before the FCC judge.

88    An extension of time to file a notice of appeal should be given in relation to the matters identified in paragraphs 72, 76, 82 and 83 above.

Associate:

Dated:    1 April 2015