FEDERAL COURT OF AUSTRALIA

DTG16 v Minister for Immigration and Border Protection [2018] FCA 143

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    The appellant appeals to this court from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) delivered on 23 August 2017 on the ground that the primary judge failed to give sufficient reasons for his decision. For the reasons that appear below, there was no such failure and the appeal must be dismissed.

Background

2    The appellant arrived in Australia as an unauthorised maritime arrival on 8 November 2012. He was invited to apply for a visa on 23 December 2015. He applied for a Class XE Subclass 790 Safe Haven Enterprise visa (protection visa) on 4 March 2016. A delegate of the first respondent refused the application for a protection visa on 24 August 2016. The decision was referred to the Immigration Assessment Authority (the Authority), the second respondent, on 25 August 2016.

The decision of the Authority not to grant a protection visa

3    The Authority did not accept the appellant’s claim that he should be granted a protection visa because he had a well-founded fear of persecution which related to his imputed political opinion arising out of a period of campaigning for the Tamil National Alliance (TNA), and a political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) imputed to him by certain anti-TNA paramilitary and/or political groupings as well as the Sri Lankan authorities.

4    In its reasons for concluding that the appellant did not face a real risk of significant harm within the meaning of s 36(2A) of the Migration Act 1958 (Cth) (the Act) and that the appellant did not meet the protection requirements set out in s 36(2)(aa) of the Act, the Authority reasoned as follows:

[24] The applicant has claimed to be a supporter of the TNA who volunteered his assistance to the TNA during election campaigns in 2012.

[25] In his written claims and his evidence at interview he stated that nothing happened to him during the campaign period and the adverse attention he received only occurred after the elections were held in September 2012, after all campaigning had finished.

…

[28] The applicant’s own evidence relates to activities prior to the 8 September 2012 provincial election in his home town back in the Eastern Province. These activities took the form of assisting the TNA by putting up banners, [distributing] leaflets and arranging and contributing to meetings. I consider that at the very highest, these activities can only be described as low–level public manifestations of support for the TNA. I do not accept that the level of the applicant’s involvement in arranging TNA political meetings raises his profile beyond that of a low–level supporter.

[29] I am prepared on balance to accept that the applicant did provide the limited support he claims to have provided to the TNA prior to the 8 September 2012 elections, and that this was the first and only time the applicant ever engaged in such activities. On the basis of my assessment of the applicant’s overall history and low–level profile, I do not accept as plausible that his wife faced ongoing visits from person[s] searching for the applicant after his departure.

[30] In the light of the country information concerning instances of violence and intimidation occurring in the contexts of Sri Lankan elections, I am prepared to accept that the applicant experienced some measure of targeting on account of his TNA involvement immediately subsequent to the September 2012 elections.

[31] However, the applicant’s involvement with the TNA on his own evidence is indicative of that of a low level volunteer campaign worker rather than that of any senior figure within the TNA.

[32] For the purposes of the assessment, I am required to consider whether now or in the foreseeable future the applicant faces a real chance of harm either from the Sri Lankan authorities or from non–state agents on account of his involvement as a TNA campaign worker in one election 2012, and were the applicant to resume any such activity upon return to Sri Lanka…

[33]…[C]ountry information indicates that … [t]he Parliamentary election of 17 August 2015 reinforced the outcomes of the presidential election and ushered in a ‘national unity government’ of major parties and the TNA now formally leads the opposition. The TNA currently has 16 members of parliament and holds the majority of seats in the Northern Provincial Council…

[34] in view of my findings of the applicant’s low level connection with the TNA, and in the absence of any country information indicating instances of recent politically motivated violence against persons with such low level TNA connections, I consider the prospect of any future such adverse attention from any non–state agents to be remote, even if the applicant were to provide assistance to the TNA upon return.

…

[37] Furthermore, I must assess the applicant’s claims in this regard on the basis of the contemporary political and security circumstances set out in the available country information, and in this I find no evidence of the Sri Lankan security apparatus being involved in instances of electoral related violence and intimidation. Furthermore, the current country information before me does not indicate any real chance of serious harm facing the applicant non—state agents either now or in the foreseeable future.

[38] I further do not accept that the applicant will be imputed with a pro LTTE political opinion on the basis of his low–level support for the TNA in the past or if he maintains such activities in the future, the latter of which as noted above is currently the major opposition grouping in Sri Lankan mainstream politics.

[39] I accordingly find that the applicant does not face a real chance of serious [harm] from the Sri Lankan (sic) on this account either now [or for the] foreseeable future return to Sri Lanka on account of his particular level of involvement with the TNA.

[40] I further find that the applicant will not be attributed with a pro LTTE political profile for any of the reasons he has advanced in this regard.

[41] I further find that to the extent that the applicant has previously received threats and intimidation by anti–TNA elements where he was campaigning in the eastern provinces in September 2012 in a specific context around elections and in a specific location, and I do not consider that the applicant would face any such threats or harm were he to again reside in Colombo now or in the foreseeable future, Colombo being where he had resided [in] 1990, noting that under s 5H(c) [of the Act], any real chance the applicant may face persecution must relate to all areas of Sri Lanka.

5    The Authority, accordingly, affirmed the decision of a delegate of the first respondent not to grant the appellant a protection visa.

The decision of the Federal Circuit Court dismissing the application for review

6    The primary judge dismissed the appellant’s application for judicial review of the decision of the Authority affirming the decision of a delegate of the first respondent not to grant the appellant a protection visa.

7    The appellant was represented by a solicitor, who argued two grounds of appeal. The first was that the Authority’s findings were unreasonable or illogical. The second was that the Authority failed to consider an “integer” of the appellant’s claim or failed to consider evidence that he adduced.

8    The primary judge held that neither ground was made out, reasoning as follows:

Consideration

Ground 1

29. In relation to Ground 1, Mr Tambimuttu [the appellant’s solicitor] took the Court to the reasons of the Authority as well as to the reasons of the delegate and the applicant’s summary of incidents to which he was exposed. Mr Tambimuttu argued that there was not a clear finding made by the Authority in relation to the particular incidents that the Authority had summarised in relation to the applicant’s claims. It is apparent on a fair reading of the Authority’s decision that it correctly identified the applicant’s claims and made the findings dispositive of each of those claims.

30. Mr Tambimuttu sought to argue that the findings were illogical, irrational, or unreasonable. The Tribunal provided cogent reasons in support of the adverse findings made by the Authority, including the taking into account of country information. Those adverse findings were open and cannot be said to lack an evident and intelligible justification. I do not accept that there are any inconsistencies in the findings of the Tribunal as advanced by Mr Tambimuttu, nor do I accept the submission that the findings by the Authority in relation to the applicant’s involvement with the TNA and adverse finding in relation to ongoing visits in respect of his wife and ultimate findings in relation to whether the applicant had any prospect of future adverse attention were irrational or unreasonable.

31. The Authority explained the low-level involvement of the applicant in relation to its reasons in finding that there was not a real chance that the applicant would be targeted if he were to provide similar assistance to the TNA in the future. In substance, the submissions on behalf of the applicant invite the Court to engage in impermissible merits review.

32. No jurisdictional error as alleged in Ground 1 is made out.

Ground 2

33. In relation to Ground 2, there was no integer of the applicant’s claims that was not properly addressed and the Authority made findings dispositive of the applicant’s claims. It was not necessary for the Authority to identify each of the incidents that the applicant alleged, given that the Authority’s reasons explained the acceptance of the applicant’s involvement and the level of activity which the applicant had in the elections, and the Authority clearly took into account the potential involvement of the applicant in similar activities in the future. There was no failure by the Authority to consider the claims or evidence by the applicant. There was no integer of the applicant’s claims that not subsumed in the adverse findings made. The Authority properly identified the relevant law and on a fair reading properly applied the relevant tests.

34. No jurisdictional error as alleged in Ground 2 is made out.

Conclusion

35. Accordingly, the application is dismissed.

Appeal to this court

Legal principles

9    Both grounds of appeal allege that the primary judge erred by failing to give “sufficient reasons” in relation to the two grounds of review before him. (A failure to give reasons may, of course, give rise to procedural unfairness or, in an appropriate case, be characterised as a constructive failure to exercise jurisdiction: see COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [38]).

10    As Flick J explained in SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582; 102 ALD 115; [2008] FCA 735 at [21]-[26]:

[21] The respondent minister in the present appeal accepted that the Federal Magistrate was under an obligation to provide reasons for his decision. It is thus an error of law for a Federal Magistrate to fail to give reasons for dismissing an application to review a decision of the Refugee Review Tribunal: SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581; 82 ALD 35; [2004] FCA 1500at [16] per Jacobson J. Albeit in a different statutory context, it has also been recognised that a Federal Magistrate should give sufficient reasons for reaching a conclusion that an application should be summarily dismissed: Penhall-Jones v State of New South Wales (Ministry of Transport) [2006] FCA 934 at [25]. Tamberlin J there said that the reasons:

[25]... do not have to be elaborate or excessively detailed, but the touchstone is that the reasons must indicate to the parties why the decision was made in order to allow them to exercise such rights as may be available in respect of that decision ...

[22] The position taken by the Respondent Minister, however, was essentially threefold, namely that:

(i) the observations of Meagher JA in Beale [v Government Insurance Office of NSW (1997) 48 NSWLR 430] as to the content of adequate reasons for a decision at first instance, do not provide an appropriate "touchstone" as to those matters which the Federal Magistrate was obliged to address in the present proceedings;

(ii) the reasons in fact provided by the Federal Magistrate did adequately explain the decision reached; and

(iii) in the event that there was a deficiency in those reasons, this Court, as a matter of discretion, should decline to allow the appeal if satisfied that the decision of the Federal Magistrate could be supported -- albeit for reasons not disclosed by the Federal Magistrate but which can be ascertained by this court.

[23] The first of those submissions must readily be accepted. There is a fundamental distinction between the responsibilities of a trial judge entrusted with the function of making findings of fact (as in Beale) and the responsibilities of a judge conducting judicial review. Central to that distinction is that in judicial review proceedings the factual merits of the decision under review are left to the decision-maker and the court conducting the judicial review is confined to a review of the legality of the decision reached.

[24] That distinction necessarily dictates a reconsideration of the approach set forth by Meagher JA in Beale. The Federal Magistrate’s task in the present proceedings was to review the decision of the [Refugee Review T]ribunal. That was essentially a task of considering the terms of the relevant legislation and reviewing the conclusions expressed by the tribunal as against the findings of fact and reasons provided. And that task is confined by s 476 of the Migration Act 1958 (Cth) (the Act).

[25] Those matters which a Federal Magistrate, it is considered, should address in reasons for decision will depend upon the factual and legal issues involved. In those circumstances where the ground of judicial review being relied upon is a denial of procedural fairness, it may be appropriate for the Federal Magistrate to consider evidence not before the tribunal, but evidence that is directed to the manner in which the tribunal proceeded. That evidence may be contested and it may be necessary to make findings of fact. Where, however, the ground of review is said to be an error of law, it may be unnecessary to go beyond the findings of fact made by the tribunal and the legislative provisions being applied.

[26] Whatever the ground of review, however, the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that Court proceeded and the reasons why the application to review the decision of the tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons that do not adequately address the grounds of review sought to be resolved if the litigant -- or this Court -- is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision.

11    Further, as the Full Court explained in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [47]:

[47] The requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 667 (Gibbs CJ). As Mahoney JA stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273:

Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if ... by his [or her] reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he [or she] has acted.

12    In that case, the Full Court held at [48] that the Federal Circuit Court judge below did not reveal his reasons because he “stat[ed] his conclusion for rejecting each ground at such a high level of generality that the basis for the conclusion [was] not exposed” and the reasons did not “disclose that the primary judge considered fundamental aspects of the appellant’s case …” The Full Court said that it is not sufficient, for example, for a judge to say no more than “that adverse findings were open and cannot be said to lack an evident and intelligible justification” because “that is merely to assert a conclusion”: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [48].

Grounds of appeal in this court - consideration

13    The appellant alleges in ground 1 that the primary judge erred by not providing sufficient or adequate reasons when rejecting the appellant’s argument that the Authority “acted in an unreasonable illogical and inconsistent manner.”

14    The appellant’s case before the primary judge was that there was an inconsistency between: (i) the Authority’s acceptance that the appellant had some “low-level” involvement with the TNA and experienced “some measure of targeting on account of his TNA involvement immediately subsequent to the September 2012 elections;” and (ii) its findings that the prospects of future harm were “remote” and that the appellant did not face a real chance of harm were he to return to Sri Lanka.

15    In his application in this court, the appellant put the point this way in his written submissions: “[The Authority] accepted that after the elections in 2012 the applicant [was] subjected [to] ‘some measure of targeting’, it thereafter accepted that the applicant may provide assistance to the TNA, but then concluded that [the prospect of] the applicant being harmed was remote.” The appellant submitted that it was “inconsistent” for the Authority to make these concurrent findings, and that the primary judge neither dealt with, nor provided adequate reasons with respect to, this argument. But, as the reasons of the Authority and the primary judge make clear, that submission ignores the significance that the Authority attributed to the country information and the primary judge’s recognition of that attribution of significance.

16    The primary judge referred in detail to the whole of the relevant findings of the Authority at [13]-[23] of his reasons. This included, relevantly, and among other things, the recent country information concerning the improved situation in Sri Lanka. As the Authority’s reasons show, and the primary judge recognised, the Authority rejected the appellant’s claims on the basis of his “low-level” involvement in the TNA and in light of the country information. See the primary judge’s reasons at [30]-[31], where he referred to the “cogent reasons in support of the adverse findings made by the Authority, including the taking into account of country information.” Once the primary judge had identified these aspects of the Authority’s findings, it was sufficient for the primary judge then to conclude, in my view correctly, that there was no inconsistency in the reasoning of the Authority. Further, the primary judge’s reasons at [30]-[31], and in particular his emphasis on the country information, the adverse findings regarding the appellant’s wife and the finding regarding the appellant’s low-level involvement is “sufficient to explain…the basis upon which” the Court proceeded and why the application for review was dismissed (see SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582; 102 ALD 115; [2008] FCA 735 at [26]). It cannot be said, therefore, that the primary judge did not deal with the arguments regarding Ground 1, nor can it be said that the primary judge did not provide adequate reasons as to why that ground failed. His Honour’s reasons were, in my view, sufficient and they do not reveal any appellable error.

17    The appellant has put Ground 2 along similar lines. Ground 2 alleges that the primary judge erred by failing to give sufficient reasons by failing “to deal with the particulars in Ground 2.”

18    Those particulars, which it is said the primary judge did not deal with, are as follows:

PARTICULARS

(i) The IAA accepted at [30] “... that the applicant experienced some measure of targeting on account of his TNA involvement immediately subsequent to the September 2012 elections.”

(ii) The IAA failed to consider the applicant's claim and evidence that three days after the 2012 election, members of the SLA and anti-TNA groups came to his home armed with guns, threatened his wife, asked for his whereabouts, and stated that they would harm him and kill him ([7]).

(iii) The applicant's evidence was that several similar incidents occurred ([7]).

(iv) The IAA did not indicate whether it considered these relatively serious incidents as constituting 'some measure of targeting' which the applicant experienced, as the IAA did not refer to these specific incidents at all, which are critical to the applicant's claims.

(v) The IAA thus failed to take account of the possibility that those incidents occurred:

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220     

[66] Again, if an applicant relies on the possibility that a particular event occurred as supporting his or her claim to a well-founded fear of persecution, a failure by the RRT to make a finding as to that possibility might constitute non-compliance with s 430(1)(c) of the Migration Act

[67] Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

19    The primary judge rejected this ground of review at [33], reasoning that there was “no integer of the applicant’s claims” that “was not properly addressed” or that was “not subsumed in the adverse findings made” and that there “was no failure by the Authority to consider the claims or evidence by the [appellant].” His Honour also said:

“… It was not necessary for the Authority to identify each of the incidents that the [appellant] alleged, given that the Authority’s reasons explained the acceptance of the [appellant’s] involvement and the level of activity which the [appellant] had in the elections, and the Authority clearly took into account the potential involvement of the [appellant] in similar activities in the future.”

20    Contrary to the suggestion in the appellant’s ground of appeal (particularly at (4)), the primary judge’s reasons are not “generalised”. But in any event, the fact that reasons are “general” is not, in and of itself, a reason to hold that the reasons are insufficient. Reasons do not have to be elaborate or excessively detailed, they need only be sufficient to explain why the decision was made: see SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582; 102 ALD 115; [2008] FCA 735 at [21].

21    This is not a case like DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, discussed above, where the reasons of the primary judge merely asserted a conclusion at a high level of generality. In this case, the primary judge’s reasons were sufficient, and they do not reveal any appellable error, because they are tied to, among other things, the Authority’s (unchallenged) and detailed findings about the incidents upon which the appellant relied, as well as the appellant’s low-level connection with the TNA, the improved political situation in Sri Lanka (including that the TNA is now leads the opposition to the ‘national unity government’ and has 16 members of parliament and holds the majority of seats in the Northern Provincial Council) and the absence of any recent incidents of politically motivated violence against persons with low level TNA connections. There was no need for the primary judge to recite or repeat in detail all the factors considered by the Tribunal. It was, in light of the Authority’s detailed reasons, sufficient for the primary judge to reason that “there was no integer of the applicant’s claims that was not properly addressed”; that “the Authority made findings dispositive of the applicant’s claims”; that “[i]t was not necessary for the Authority to identify each of the incidents that the applicant alleged, given that the Authority’s reasons explained the acceptance of the applicant’s involvement and the level of activity which the applicant had in the elections”; that “the Authority clearly took into account the potential involvement of the applicant in similar activities in the future”; that “[t]here was no failure by the Authority to consider the claims or evidence by the applicant”; that “[t]here was no integer of the applicant’s claims that [was] not subsumed in the adverse findings made”; and that “[t]he Authority properly identified the relevant law and on a fair reading properly applied the relevant tests”.

22    Those reasons are “sufficient to explain to both the [appellant] and others the basis upon which [the primary judge] proceeded and the reasons why the application to review the decision of the tribunal is either to be dismissed” and no one “is left to speculate as to what it was that the [primary judge] had in mind when he reached the conclusions that formed the final decision”: SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582; 102 ALD 115; [2008] FCA 735 at [26].

23    The appeal will accordingly be dismissed, with costs.

Associate:

Dated:    23 February 2018