FEDERAL COURT OF AUSTRALIA

CJD16 v Minister for Immigration and Border Protection [2019] FCA 20

Appeal from:

CJD16 v Minister for Immigration & Anor [2017] FCCA 2748

File number:

SAD 333 of 2017

Judge:

CHARLESWORTH J

Date of judgment:

18 January 2019

Catchwords:

MIGRATION – appeal from judgment dismissing application for judicial review of a decision of the Immigration Assessment Authority – Authority affirming a decision to refuse to grant the appellant a protection visa – Authority finding the appellant had been subject to periodic detention and questioning – Authority finding appellant had been subject to threats of physical assault but not in fact assaulted – Authority finding appellant may experience like events if returned to his home country – Authority finding no real chance appellant would suffer serious harm – whether Authority misconstrued or misapplied test for serious harm – meaning of “significant physical harassment” – whether Authority’s decision affected by legal unreasonableness – no jurisdictional error – appeal dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth) s 24

Migration Act 1958 (Cth) ss 5H, 5J, 36, 65, 91R, 473CC, 474, Pt 7AA

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Cases cited:

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

CJD16 v Minister for Immigration & Anor [2017] FCCA 2748

House v The King (1936) 55 CLR 499

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Date of hearing:

3 August 2018

Registry:

South Australia

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

61

Counsel for the Appellant:

Mr P Charman

Solicitor for the Appellant:

MSM Legal

Counsel for the First Respondent:

Mr D O’Leary

Solicitor for the First Respondent:

Sparke Hellmore Lawyers

Solicitor for the Second Respondent:

The Second Respondent filed a Submitting Notice

ORDERS

SAD 333 of 2017

BETWEEN:

CJD16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

18 JANUARY 2019

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This appeal concerns the eligibility of the appellant for a protection visa under the Migration Act 1958 (Cth).

2    The appellant is a Sri Lankan national of Tamil ethnicity. He grew up in the Eastern Province of Sri Lanka at a time when the region was under the control of the Liberation Tigers of Tamil Eeelam (LTTE).

3    A delegate of the Minister for Immigration and Border Protection refused to grant the appellant a protection visa. The delegate disbelieved the appellant’s claims concerning harassment he and his family had experienced at the hands of the Sri Lankan authorities as suspected supporters of the LTTE.

4    The delegate’s decision was referred to the Immigration Assessment Authority for review in accordance with Pt 7AA of the Act. Unlike the delegate, the Authority for the most part accepted that past events described by the appellant had in fact occurred. The Authority accepted that, if returned to Sri Lanka, there was a possibility that the appellant may be subject to further questioning by reason of his family’s connections with the LTTE, and that he may be temporarily detained for that purpose. The Authority nonetheless affirmed the delegate’s decision not to grant the appellant a protection visa. Relevantly for the purposes of this appeal, the Authority was not satisfied that there was a real chance that, if returned to Sri Lanka, the appellant would suffer “serious harm” within the meaning of the Act.

5    The appellant sought judicial review of the Authority’s decision in the Federal Circuit Court of Australia. Among other things, he argued that the Authority’s decision was legally unreasonable and so affected by jurisdictional error in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. He submitted that the only conclusion reasonably open on the facts as found by the Authority was that there was a real chance that, if returned to Sri Lanka, he would suffer serious harm, particularly in the form of periodic and temporary periods of detention by reason of his imputed political opinions.

6    The primary judge dismissed the application for judicial review: CJD16 v Minister for Immigration & Anor [2017] FCCA 2748. This is an appeal from that judgment.

THE ACT

7    The power to grant or refuse to grant a visa is conferred on the Minister by s 65 of the Act. The Authority’s power to affirm a decision of the Minister is conferred by s 473CC.

8    The effect of s 65(1)(b) of the Act is that the Minister must refuse to grant a person a visa if the Minister is not satisfied that the person fulfils the visa criteria. The same obligation applies to the Authority.

9    For the appellant to be eligible for the grant of a protection visa, it was necessary that the Minister (or, on review, the Authority) be satisfied that he fulfilled (among other things) at least one of the two alternate criteria prescribed in s 36(2) of the Act. It relevantly provides:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

10    The word “refugee” in s 36(2)(a) is defined in s 5H of the Act, relevantly as follows:

5H Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

….

11    Section 5H(2) sets out a number of matters that would disqualify a person from falling within the definition, none of which arise in the appellant’s case.

12    The refugee definition was introduced by amendments to the Act coming into force on 18 April 2015: see Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act). Prior to the amendments, the visa criterion prescribed by s 36(2)(a) of the Act was cast in terms requiring that the Minister be satisfied that the visa applicant was a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, namely a person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

13    The phrase “well-founded fear of persecution”, as now used in s 5H(1)(a) of the Act, is defined in s 5J. Relevantly, it provides:

5J Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2)    A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

(4)    If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)    the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)    Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

  (a)    a threat to the person’s life or liberty;

  (b)    significant physical harassment of the person;

  (c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

14    Section 5J(5) specifies instances of the serious harm mentioned in s 5J(4)(b), but does not otherwise seek to define the term: see Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at [48] in respect of an antecedent and equivalent provision.

15    The statutory definition of a “refugee” (together with the defined terms within it) largely adopts the words of Art 1A of the Convention and provisions such as 91R of the Act, which are now repealed. The prior jurisprudence of this Court and the High Court may be called in aid for the purposes of construing the more recently enacted provisions, subject of course to any differences in text or context upon which the issues to be decided may turn.

16    In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Mason CJ said that a fear of prosecution would be objectively well-founded if there is a real chance that the refugee will be persecuted if returned to his own country. His Honour said (at 389):

I prefer the expression ‘a real chance’ because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v. The Queen, per Mason, Wilson and Deane JJ. If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

17    McHugh J said at 429:

a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a farfetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as ‘well-founded’ for the purpose of the Convention and Protocol.

THE AUTHORITY’S REASONS

18    With the exception of two aspects of the appellant’s claims, the Authority considered that the appellant had “provided a generally credible account of his circumstances” and that his claims were broadly consistent with country information to which the Authority referred.

19    The following paragraphs of these reasons paraphrase in general terms the findings of the Authority in relation to the situation in Sri Lanka and in relation to past events claimed by the appellant. They are not intended exhaustively to list all of the matters to which the Authority adverted.

20    The appellant’s father had provided some support to the LTTE, and the Sri Lankan authorities were aware of the level of support he had provided. As a consequence, the appellant’s family may have been imputed with the political opinions of LTTE sympathisers.

21    From about 2008, the authorities had attended at the family home. The appellant’s father was questioned by the authorities every two or three months, sometimes at home and sometimes in a nearby army camp where he would be detained for a day. The appellant’s father had been harassed, monitored, questioned and subject to physical assault and torture, on one occasion having his arm broken. The appellant’s father was also subject to reporting requirements and so was required to inform the authorities of his movements.

22    On occasions when the appellant’s father was not at home, the appellant would be questioned, either at the home or at a nearby army camp. During the questioning, the appellant had been threatened with physical assault, although he was not in fact assaulted. The appellant had been subject to “brief” questioning on five or six occasions over three years. The focus of the questioning was the father’s activities. The appellant had been asked about the whereabouts of hidden LTTE weapons and the family home had been searched (unsuccessfully) for weapons once in 2007 or 2008. As no weapons had been found, the authorities no longer suspected that weapons were hidden at the property, or that the appellant had knowledge of any hidden weapons.

23    Since the election of a new government, the security situation in Sri Lanka had improved and it was likely that the authorities’ monitoring of the appellant’s father had decreased in recent years. Although the level of monitoring of those suspected of involvement with the LTTE had eased, people who had provided low level support could still be monitored, detained and sent for “rehabilitation”. Human rights abuses still occurred.

24    The appellant’s direct involvement with the LTTE had been limited, given his young age at the time of the civil war. To the extent that the appellant was personally of interest to the Sri Lankan authorities the interest arose because of the activities of his father. The appellant may have been required to notify the authorities of any proposed absence from his home, although that did not indicate that he was subject to regular reporting conditions (and the Authority was not satisfied that he was).

25    Not all aspects of the appellant’s claims were accepted by the Authority. To the extent that the Authority did not accept that certain events had occurred as claimed, that did not affect the Authority’s conclusion that the appellant’s account of events was generally credible.

26    From this factual basis, the Authority predicted that if the appellant were to be returned to Sri Lanka, he may be monitored, and from time to time face questioning or even brief detention by security forces. Counsel for the Minister acknowledged that the monitoring, questioning and detention to which the Authority referred would be by reason of the father’s association with the LTTE.

27    The Authority reasoned as follows:

33.    As discussed above, country information indicates that while the Northern and Eastern Provinces remain heavily militarised, the highly oppressive monitoring and registration regime in place just after the war is being eased. The country information indicates that the Tamil population is monitored for behaviour indicating support for the LTTE, a desire to revive it, or anti-government activity; this is consistent with the applicant’s evidence that he was from time to time called to the CID and questioned. On the basis of the applicant’s evidence about his own experiences, I am not satisfied that his being called for questioning on five or six occasions over a period of three years, where he was not physically harmed although he was threatened, constitutes serious harm amounting to persecution, even taking into account his young age.

34.    In these circumstances, and given the changed security conditions in Sri Lanka (albeit accepting that human rights abuses still occur) I find that there is no real chance that the applicant would be subjected to harm on return to Sri Lanka in the reasonably foreseeable future as a person with suspected LTTE connections. The security situation seems to have eased, although problems remain, and I accept that some Tamils continue to be subjected to human rights abuses. The applicant’s evidence suggests that the monitoring of his father has eased. He stated that his brother was able to leave Sri Lanka for Qatar, and return, without difficulty. His brother is now living in a village neighbouring the family home and while the applicant has no first hand knowledge of his situation, having left Sri Lanka before his brother returned, I consider that the applicant’s family would have informed him had his brother been experiencing significant, or possibly any problems from the security authorities. I find that the authorities were aware, prior to the applicant’s departure, of the degree of involvement of his family with the LTTE. I consider that no member of the family was under ongoing investigation or under suspicion of any greater level of LTTE activity than was already known. In these circumstances, and given his young age during the conflict and the low level, if any, of his own involvement with the LTTE, I find that the applicant would not face an escalated risk of harm on return. While I accept that he may continue to face some questioning from security forces, I do not accept that would amount to any form of serious harm.

(Emphasis added)

28    To similar effect, the Authority rejected the appellant’s claim that he would suffer serious harm by virtue of his status as a returned failed asylum seeker. In that regard, the Authority said (at [41]):

Having regard to his circumstances, I am not satisfied there is a real chance that the applicant would be subjected to torture or other serious harm during any process of investigation, or while on remand. I accept, on information from DFAT, that prison conditions in Sri Lanka do not meet international standards and that there is a lack of resources, overcrowding, and poor sanitary conditions. Section 5J(5)(a) of the Act refers to a threat to a person’s liberty as an instance of serious harm. However, in MIBP v WZAPN the High Court confirmed that whether a risk of loss of liberty constituted serious harm required a qualitative judgment, including an evaluation of the nature and gravity of the loss of liberty. I find that even if the applicant arrives on a weekend and is detained until he appears before a magistrate and then until bail is granted, the period of detention will be brief, amounting to a matter of days. In my view, this does not rise to the level of a threat to life or liberty, or to significant physical harassment or ill treatment, or otherwise amount to serious harm, even taking the prison conditions into account. I consider that even considered cumulatively, the totality of the treatment that the applicant is likely to experience on return, including being detained for several hours at the airport, then potentially being detained on remand for up to several days in overcrowded and unsanitary conditions, and having to pay a fine, does not amount to serious harm.

REASONS OF THE PRIMARY JUDGE

29    On his application for judicial review the onus was on the appellant to show that the Authority’s decision was affected by jurisdictional error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

30    The fourth ground for judicial review before the primary judge was expressed as follows:

4.    The [Authority] committed jurisdictional error in failing to properly interpret the law regarding a real chance of persecution in Sri Lanka for a Convention reason.

Particulars

4.1    Having found (for example, paragraph 32, 33 and 34 of the decision), that the applicant had been called for questioning by Sri Lankan authorities on five or six occasions over a period of three years, and was threatened. The second respondent should have found that this constitutes serious harm amounting to persecution.

4. 2    The second respondent should have found that:

    The past conduct of the Sri Lankan authorities constituted persecution.

    The Applicant faced a real chance of persecution in Sri Lanka in the future.

31    This ground was dealt with by the primary judge together with another ground which need not be set out here.

32    Although the fourth ground for review was described in the originating application as an error of statutory construction, the oral submissions of the appellant before the primary judge were to the effect that it was legally unreasonable for the Authority to reach the conclusion that it did on the found facts. As on this appeal, the submissions as to legal unreasonableness were outcome-focussed, such that an error in construing and applying the law was, submitted to be, latent in the Authority’s reasoning.

33    The primary judge gave the following reasons for rejecting the fourth ground of judicial review:

89.    Essentially, an administrative decision maker is required to provide an intelligible and reasonable explanation as to why a particular decision has been reached – in this case that the degree of harm to which the applicant might be exposed, if returned to Sri Lanka, was not objectively well-founded because the level of harm, to which he might conceivably be exposed was neither significant nor serious. In conducting this task, the [Authority] was required to assess the degree and qualitative nature of this harm.

90.    In my view, the IAA considered each aspect of the applicant’s claim for protection. It rejected some aspects of his evidence, as it was entitled to do, particularly in respect of his identification by the masked person at the checkpoint. However, it also considered that the applicant was likely to have some profile, as a Tamil and person whose family had been involved with the LTTE during the civil war, with the Sri Lankan authorities, which might lead to him being questioned in future.

91.    In this context, it noted the nature of the applicant’s profile and the fact that he himself did not claim to have been previously physically assaulted by the authorities. In my view, although conceivably some other decision maker might have reached a different conclusion, as to the quality of the risk arising to the applicant in future, the IAA has provided an intelligible and transparent line of reasoning as to why it has concluded that the risk of harm arising to the applicant is neither serious nor likely to escalate in future.

92.    In SZUWX v Minister for Immigration & Border Protection Griffith J summarised the High Court’s decision in Li. His Honour said as follows:

‘…with the bounds of legal unreasonableness, there ‘is an area within which a decision-maker has a genuinely free discretion’. It is critical that, in exercising a judicial review function, the courts not exceed ‘their supervisory role by undertaking a review of the merits of an exercise of discretionary power’. Application of a standard of legal unreasonableness ‘does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker’.’

93.    In my view, these comments are apposite to the current matter and the two grounds of review under consideration. In my view, the determination made by the IAA was reasonably open to it. In these circumstances, in my assessment, the decision is not vitiated by any error of jurisdiction.

(Footnotes omitted)

ISSUES ARISING ON THE APPEAL

34    The ground of appeal before this Court is broadly to the effect that the primary judge erred in rejecting the fourth ground for judicial review in the proceedings below.

35    The appellant’s case is that the Authority misapprehended or misapplied the test for “serious harm” and so arrived at a conclusion that was not lawfully open to it. The Authority, it was submitted, assessed whether there was a real chance that the appellant would suffer serious harm from the wrong footing that the concept of serious harm necessarily entailed the infliction of physical assault. The Authority erred, the appellant submitted, by failing to find that the temporary detention and harassment to which the appellant had been subject in the past constituted serious harm. He submitted that the error was made manifest at [33] of the Authority’s reasons which, he submitted, evidenced the Authority adopting an erroneous construction of the phrase “serious harm” by emphasising the absence of past instances of actual physical assault upon him.

36    It was then contended that whilst the Authority found that the appellant may again be subject to like questioning upon his return (and so implicitly found that there was a real chance of like events occurring), the Authority again erroneously focussed upon whether the appellant would, in the foreseeable future, suffer physical harm in the sense of physical assault or torture. That error was said to be evidenced in [34] of the Authority’s reasons in which the Authority found that there would be no escalation in the degree of harm, relative to the harm that the appellant had suffered in the past.

37    The appellant submitted that the Authority failed to recognise that temporary detention and questioning may constitute “significant physical harassment” within the meaning of s 5J(4)(b) of the Act.

38    Prior to the enactment of the Amending Act, “significant physical harassment” was included as an incident of serious harm as then defined in s 91R(2)(b). Another instance of serious harm included a “threat to life or liberty” in s 91R(2)(a), now re-enacted in s 5J(5)(a). In WZAPN the High Court held that the question of whether a threat to liberty constituted serious harm for the purposes of these provisions required a qualitative assessment of the circumstances (including frequency and duration) of the detention. The appellants in that case had pointed to the absence in s 91R(2)(a) of any qualifying word such as “significant”. They argued that any threat to liberty was sufficient. Rejecting the appellants’ argument, French CJ, Keifel, Bell and Keane JJ said (at [51]):

It is also noteworthy that s 91R(2)(b) lists ‘significant physical harassment’ as an instance of serious harm. Temporary detentions of a person fall naturally within the description of physical harassment, and so readily within s 91R(2)(b). Because that is so, it is unnecessary to engage in the awkward shoehorning of cases of harassment involving episodes of temporary detention into s 91R(2)(a) in order to give effect to Australia’s obligations under the Convention. Moreover, to treat any detention as falling within s 91R(2)(a) rather than s 91R(2)(b) would deprive s 91R(2)(b) of much of the operation it could be expected to have. Further, a determination whether temporary detention amounts to significant physical harassment obviously requires a decision-maker to consider the gravity and frequency of the incidents in which harassment is said to have occurred: that task is indisputably one of fact and degree. It may be said in a given case that the risk of physical harassment involving detention is so severe as to be properly described as a threat to the life or liberty of a person. But to say that is to acknowledge, emphatically, that the question is a matter of fact and degree dependent upon the circumstances of the detention.

39    On this appeal, the appellant acknowledged that although temporary detention fell within the description “physical harassment” it remained necessary to consider whether the detention was “significant” and so required an evaluative assessment involving matters of fact and degree. His contention was that the Authority had failed to undertake any such assessment at all because of its erroneous focus on the absence of physical assault.

40    The only conclusion reasonably available to the Authority, on the basis of the found facts, was a conclusion that there was a real chance that he would, if returned to Sri Lanka suffer serious harm in the nature of significant physical harassment: it was not within the Authority’s “area of decisional freedom” to conclude otherwise, so it was submitted.

41    For the reasons that follow, I do not consider the Authority reasoned in the fashion alleged by the appellant. In my view, the Authority did undertake an evaluative assessment of the harassment to which the appellant may be subject if he were to be returned to Sri Lanka. The Authority did not erroneously assume that detention could not amount to serious harm in and of itself. The Authority’s conclusion that the predicted future harassment was not to be categorised as “serious harm” was a qualified conclusion that was lawfully available to be made on the fact as it had found them.

PRINCIPLES

42    In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, Allsop CJ discussed the various words and phrases used in the authorities to encapsulate or explain the concept of legal unreasonableness. His Honour said:

2    The proper elucidation and explanation of the concepts of jurisdictional error and legal unreasonableness does not depend on definitional formulae or on one verbal description rather than another. Both concepts concern the lawful exercise of power. For that reason alone, any attempt to be comprehensive or exhaustive in defining when a decision will be sufficiently defective as to be legally unreasonable and display jurisdictional error is likely to be productive of complexity and confusion. One aspect of any such attempt can be seen in the over-categorisation of more general concepts and over-emphasis on the particular language of judicial expression of principle. Thus, it is unhelpful to approach the task by seeking to draw categorised differences between words and phrases such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other.

3    These words and phrases express a rule that is directed to the limits of the exercise of power, and, because of that function, are necessarily expressed as abstractions applying to the infinite variety of decision-making under variously expressed statutory provisions, in a wide variety of legal contexts.

43    His Honour continued:

6    Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an ‘outcome focused’ conclusion without any specific jurisdictional error being identified: Singh at [44].

7    It is in relation to the second context, the ‘outcome focused’ application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes productive of complexity and confusion. There is ‘an area of decisional freedom’ of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness.  …

44    As Allsop CJ emphasised (at [12]) the task for a court on judicial review is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view reveals error. The Court’s task is to evaluate the quality of the Authority’s decision by reference to the statutory source of its power and to determine whether, from its scope, purpose and objects, the decision is lawful.

45    The source of the Authority’s power to refuse to grant the appellant a protection visa is that conferred by s 65(1)(b) of the Act. Relevantly for present purposes, it is a factual precondition for the exercise of that power that the Authority not be satisfied that the appellant fulfils the criteria for a protection visa. That subjective state of mind must be formed lawfully. If formed on the basis of an erroneous construction of the statute conferring the power, the state of mind will not have been formed lawfully and the error may be categorised as jurisdictional provided that the error is material: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [23] - [24] (Gummow ACJ and Kiefel J); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [37] - [38] (Gummow and Hayne JJ). Although presented under the label of legal unreasonableness, ultimately the error alleged by the appellant is in the nature of a latent error of construction, specifically concerning the word “refugee” as defined in s 5H, and the phrases “serious harm” and “significant physical harassment” in s 5J.

46    The appeal is brought pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth). It is an appeal in the nature of a rehearing: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30. The question for determination on the appeal is whether the Authority’s decision “was legally unreasonable and whether the primary judge’s reasoning in this regard was correct”: SZVFW at [18] (Kiefel CJ). The Court is to decide for itself whether the decision of the Authority was unreasonable: SZVFW at [20] (Gageler J). It is to give effect to its own conclusion if its conclusion differs from that of the primary judge: SZVFW at [27] (Gageler J). The appeal is not one attracting the principles in House v The King (1936) 55 CLR 499.

CONSIDERATION

47    The reasons of the Authority make it plain that the possible course of the appellant’s future was predicted by reference to what had happened to him in the past and by reference to country information concerning the improving security situation in Sri Lanka since his departure. That is an orthodox approach. As the majority said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 – 575:

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

48    It seems to me that the Authority approached its task in four steps. First, it considered the evidence and made findings of fact concerning the harm that had been suffered by the appellant prior to fleeing Sri Lanka. Second, the Authority concluded that the harm suffered by the appellant prior to fleeing Sri Lanka was not to be characterised as serious harm. Third, the Authority predicted that if returned to Sri Lanka the appellant would be subject to further monitoring and may be temporarily detained. Fourth, the Authority concluded that the monitoring, questioning and detention would not be “escalated” relative to what had occurred in the past and so would not constitute “serious harm”.

49    It may be accepted that a latent error of statutory construction infecting the second step in the Authority’s reasoning would materially affect the outcome and so constitute jurisdictional error, whatever label may be ascribed to it.

50    As counsel for the Minister acknowledged, the Act did not authorise the Authority to determine the appellant’s status as a refugee on the wrong premise that there must be a real chance that the appellant would suffer physical violence of torture if returned to Sri Lanka. For the Minister it is contended that the outcome is explained by the Authority making an evaluative and qualitative assessment that any future invasions of liberty or other harassment the appellant may suffer did not amount to “serious harm”, including because it did not constitute significant physical harassment.

51    The difference between the parties’ submissions lies in the interpretation of the Authority’s reasons as a whole, including the concluding sentence of [33] upon which the appellant so heavily relied. The principles concerning the approach of a court on judicial review to the interpretation of the reasons given for an administrative decision are well established: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

52    When a court on judicial review (or subsequent appeal) is invited to impugn a particular step in the Authority’s reasoning, the task is not to be undertaken with too narrow a focus on the particular paragraph or sentence in which that part of the reasoning is exposed. The reasoning is to be fairly understood having regard to the reasons as a whole.

53    In my view there are at least two alternative explanations for the Authority referring (at [33]) to physical harm having been threatened against the appellant “although” not in fact occurring. One explanation is consistent with the appellant’s argument: the Authority wrongly assumed that the detention and harassment to which the appellant had been subject (and may in the future be subject) would not constitute serious harm unless accompanied by actual physical assault.

54    Another explanation is that the Authority was there referring to features of the past events that were relevant to its assessment of the nature and severity of the past episodes of harassment. The question of whether periods of temporary detention had been accompanied by threats of physical harm or actual physical harm would clearly be relevant to a qualitative assessment as to whether physical harassment in the form of periodic detention was “significant”. So, too, would the length of the detention (which the Authority described as “brief”) and the frequency of the detention (five to six times over a three year period).

55    It is true that the Authority, at [33] of its reasons, makes no reference at all to the instances of serious harm to which s 5J(5) of the Act refers. However, for the four reasons that follow, I do not infer that the Authority proceeded in ignorance of that provision or otherwise upon an incorrect construction of the phrase “serious harm” in s 5J(4), nor in ignorance of the statement of the majority in WZAPN, extracted at [38] above.

56    First, as I have said, the matters to which the Authority refers properly bear on the gravity of the harm to which the appellant might be subject upon his return to Sri Lanka and so generally are indicative of a correct approach. In my view, the Authority’s reference to there being no physical assaults inflicted on the appellant is explained by the Authority regarding that feature to be relevant to the gravity of the monitoring and detention to which the appellant had been subject in the past (as it was entitled to do). It does not follow that the Authority assumed that the infliction of physical violence as an essential characteristic that must be present before the harm suffered by the appellant could be regarded as serious.

57    Second, the Authority expressly referred, at [10] of its reasons, to 5J of the Act and the concept of a well-founded fear of persecution. It identified that the concept of persecution “involves serious harm and systematic and discriminatory conduct”. The Authority did not proceed in ignorance of s 5J.

58    Third, the Authority considered, at [41] (extracted at [28] above) the possible future consequences of the appellant having departed illegally from Sri Lanka by boat. It found that, by reason of the circumstances of his departure, the appellant may be detained for contravention of the Sri Lankan Immigrants and Emigrants Act. It then turned to consider whether the detention of the appellant under that Act would constitute serious harm (assuming, in the present context, that the detention would be for a reason related to his imputed political opinion). The Authority made a qualitative assessment of the gravity of the harm occasioned by that predicted instance of detention. In so doing, it expressly referred to the concept of “significant physical harassment”. It is clear from this portion of its reasons that the Authority recognised that detention of the appellant constituted a threat to his liberty and that it constituted physical harassment, but nonetheless determined that the detention would not constitute serious harm. Read as a whole, the passage discloses a correct appreciation on the part of the Authority that it would not be necessary for an instance of detention to be accompanied by physical assault in order to constitute serious harm.

59    Fourth, it is not sufficient for the appellant to show that the only conclusion available on the facts is that, if returned to Sri Lanka there would be a real chance that there would be a recurrence of the kind of monitoring and questioning to which he had been previously subject, including instances of temporary detention. On a proper reading of the Authority’s reasons, it accepted that there was a proper basis for the appellant’s fear that the past harassment, directed at him personally, may continue. However, it does not follow that the only conclusion available to the Authority was the predicted harm would be “serious harm”. In my view the outcome of the Authority’s decision, in light of all of the found facts, does not speak of an erroneous interpretation or application of the Act. The outcome of the Authority’s decision does not fall outside the area of decisional freedom discernible from the definition of “serious harm” or, more generally, from the definition of the word “refugee”.

60    It follows that I must reject the appellant’s contention that the Authority’s decision is affected by jurisdictional error, whether the asserted error be described as legal unreasonableness or as a material misapprehension or misapplication of the law.

61    Before concluding, I should explain why these reasons do not address the question of whether the Authority erred in not finding that there was a real chance that physical violence would in fact be inflicted upon the appellant should he be returned to Sri Lanka. I do not consider that counsel for the appellant clearly articulated such an argument in written or oral submissions, even though the grounds specified in the amended notice of appeal (filed, with leave, after the conclusion of the hearing) was cast in terms broad enough to capture the point. The Authority implicitly held that there was no real chance of actual physical assault in that portion of its reasons where it found that there would be no escalation of what had occurred in the past. This Court expresses no view on whether that part of the Authority’s decision is affected by jurisdictional error.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.

Associate:

Dated:    18 January 2019