FEDERAL COURT OF AUSTRALIA

BJM16 v Minister for Immigration and Border Protection [2019] FCA 143

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs fixed in the amount of $7,381.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    This is an appeal from a decision of a Judge of the Federal Circuit Court of Australia: see BJM16 v Minister for Immigration and Border Protection [2016] FCCA 2408. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. On 12 May 2016, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection made on 12 September 2014 to refuse the appellant (also referred to as BJM16) a Protection (Class XA) visa.

2    BJM16 arrived on the Australian mainland on 9 April 2013 as an irregular maritime arrival. He lodged an application for a protection visa on 8 July 2013.

3    BJM16 was born in the Batticaloa District, Eastern Province of Sri Lanka. He is Tamil and Hindu. He is married with a son and daughter and he has a sister and brother, all of whom reside in Sri Lanka; his parents are deceased. He worked as a farmer in Sri Lanka until 2006 and during periods after that. From 2006 to 2012 he worked in Qatar as a supervisor and cleaner and during that period he returned to Sri Lanka three times (in 2007/2008, 2010 and 2012). His claims for protection are discussed below.

Tribunal decision

4    The Tribunal summarised BJM16’s claims in detail in its decision record dated 12 May 2016 (or DR) at DR[14]-[33]. It summarised them briefly at DR[38]-[41] as follows (as written):

38.    The applicant claims are that he fears persecution for the following Convention reasons:

(a)    his imputed political opinions, that is, his perceived association and his activities of transporting medicines and petrol for the LTTE in the past, and the incident where a bomb was found just outside his front gate by the Karuna.

39.    At the Tribunal hearing the applicant did not claim that he would be persecuted for reasons of:

(a)    his Tamil ethnicity;

(b)    his perceived status as a wealthy person; or

(c)    his membership of a particular social group, that is, failed Sri Lankan asylum seekers who left Sri Lanka illegally and who return to Sri Lanka from Australia.

40.    Nevertheless, the Tribunal gave consideration to these issues as part of claims he made earlier to the Department.

41.    The applicant claims he will be tortured, jailed or killed if he returns to Sri Lanka. …

5    The Tribunal accepted evidence given by BJM16 as follows:

(1)    His father was shot and killed by the Sri Lankan army in 1990. BJM16 was then four years old and as far as he was aware, his father was not a member of the Liberation Tigers of Tamil Eelam (LTTE). His family was forced to flee as a result of the war. The Tribunal was not satisfied that there was a real chance that he would suffer serious or significant harm now or in the foreseeable future, because BJM16 was a family member of a person who was shot and killed: DR[43]-[44].

(2)    On a few occasions between 2002 and 2005, he was used by the LTTE to collect parcels which he believed to contain medicine and to transport cans of petrol. He was not a member of the LTTE himself: DR[45].

(3)    On BJM16’s return from Qatar in 2005, after failed attempts to obtain work, he had no major problems with the LTTE and he departed Sri Lanka again in 2006 to obtain work in Qatar: DR[46].

(4)    Despite his involvement in low-level delivery of medicine and (on one occasion) petrol, BJM16 was not actually an LTTE supporter and he was acting under duress at the time: DR[56].

(5)    In 2007/2008 a bomb was found outside the gate of his farm. BJM16 was detained, interrogated and beaten by members of Karuna who accused him of being a member of the LTTE. He was extorted for money a few days later which he paid by selling his wife’s gold wedding necklace. He was then able to depart Sri Lanka for Qatar after a few months’ vacation: DR[47].

(6)    He returned to Sri Lanka in January 2012 when he thought that the war was over and he would be able to earn a living on his farm: DR at [49].

(7)    There were local media reports of incidents relating to abduction of people and “white vans” in 2012 and BJM16 was fearful he may also be abducted due to his previous activities with the LTTE, but nothing actually happened to him personally and he was not approached for questioning by anyone during the period. He remained in his own home between returning to Sri Lanka in January 2012 and going to his sister’s house in August 2012: DR[50].

(8)    It was credible that it was only after he went to his sister’s home that people from the Criminal Investigation Department (CID) came to his house and threatened to shoot his wife if she did not tell them where he was, given he had been in his own home for eight to nine months in 2012 and during this time he claimed the CID came to his home to question him about the bomb incident. Although he was absent, his wife was only questioned and told that BJM16 should report to the camp for questioning. The Tribunal did not, however, accept his evidence that after he arrived in Australia the CID went to his house and questioned his wife about his whereabouts, demanding that he return to Sri Lanka as they thought he might be hiding more weapons after finding the bomb outside his front gate in 2007/2008. This was because that accusation would not be made more than five years after the bomb was found and if the army was concerned about that it would have been reasonable that they would have searched his house in his absence: DR[51]-[52].

(9)    BJM16 was able to live in his home for eight or nine months in 2012 without being detained or harmed. While BJM16 claims that he and his wife were questioned in 2012, nothing happened to them: DR[62].

6    After taking into account information from the Department of Foreign Affairs and Trade (DFAT) and its findings above, the Tribunal did not accept that BJM16 was of adverse interest to the Sri Lankan authorities (including the army, CID or former members of the Karuna Group) by reason of activities he undertook in 2002-2005 or the bomb incident in 2007/2008 or that there was anything in BJM16’s background, including his race, age, gender, ethnicity or location in Sri Lanka that would lead to an imputed anti-government opinion or that he would be a person whom the authorities will be interested in for any imputed anti-government or pro-LTTE political opinion: DR[58]-[59] [63].

7    Relevantly to the grounds of appeal:

(1)    The Tribunal did not accept that systematic discrimination which could amount to serious or significant harm occurs in the East of Sri Lanka which has a majority Tamil population although some Sinhalese were moving into the region. It noted at DR[69] that:

As stated by the applicant, he is a landholder and worked as a farmer in the past. The Tribunal considers that the applicant can readily find work and support himself on return to Sri Lanka, and will not face serious harm or significant harm for this reason.

(2)    Based on country information, the Tribunal accepted that, while people with particular profiles may be subjected to serious harm when they return to Sri Lanka and people who left illegally will likely be detained for a short period, there was no credible information before the Tribunal to support a finding that failed asylum seekers (including Tamils and those returning from Western countries) are for those reasons alone, imputed with a pro-LTTE opinion or suspected of having been involved, previously or currently, in supporting the LTTE: DR[73].

(3)    The Tribunal accepted that BJM16 departed Sri Lanka illegally and, based on country information, it therefore accepted that it was likely that he would face questioning at the airport, arrest on charges of illegal departure, that there was a possibility that he could be placed in remand for a relatively brief period while awaiting a bail hearing, and he would later be fined if found guilty. The Tribunal was satisfied on the basis of BJM16’s evidence that he would be able to pay bail and be released from remand: DR[74].

(4)    Based on country information, and in light of his lack of pro-LTTE or anti-government profile, the Tribunal was not satisfied that there was a real risk that BJM16 would be subjected to serious harm at the airport, on remand or in his home area as a failed asylum seeker who departed Sri Lanka illegally, including from a Western country such as Australia: DR[76]-[78].

(5)    In relation to his claims related to being perceived as wealthy, the Tribunal found at DR[79]-[82] as follows:

79.    In his written statement for protection the applicant claimed that because his family have a significant amount of land and he has travelled to and worked in Qatar several times [and] has been in Australia for three years he will be perceived as wealthy and therefore targeted by the authorities. He did not pursue these claims in his interview with a delegate or at the Tribunal hearing.

80.    The applicant has not provided any evidence of his landholdings. He told the Tribunal that his farm is currently being worked by his uncle and did not make any claims that his uncle has been the subject of persecution or harassment. The applicant also told the Tribunal that when members of Karuna extorted him for money when the bomb was discovered outside the gate of his farm they demanded 1 lakh which he was unable to pay despite his work in Qatar. He sold his wife’s gold wedding chain for rs. 75,000 which he paid to the Karuna members and apparently accepted. When he returned to Sri Lanka in 2010 he was again asked for money which he could not pay. He claims he “ran away” but was not physically harmed and nor were members of his family despite his staying there a few months. No demands for money were made for the 9 months he lived in his own home in 2012.

81.    Based on the applicant’s evidence above, the Tribunal does not accept that he is perceived to be wealthy as a result of his family land-holdings or his working Qatar.

82.    The Tribunal accepts that it is possible some people may think the applicant has more money than he actually has as a result of living in Australia for three years. However, there is no independent evidence before the tribunal that indicates that despite the large numbers of returned asylum seekers from countries such as Australia, that they are targeted for reasons of perceived wealth or that there is a real chance or real risk they would suffer serious or significant harm.

(6)    The Tribunal stated, at DR[83]:

Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that there is a real chance that the applicant will suffer serious harm as a result of any of the individual claims discussed above or as a result of a combination of any of the factors discussed above, including his race, imputed political opinion or membership of a particular social group.

Grounds of Appeal

8    BJM16 sought leave to rely on an amended notice of appeal filed on 22 February 2018 and he filed submissions in support of the proposed grounds. The Minister filed written submissions which addressed the proposed grounds and did not oppose leave being granted. Leave was granted.

9    The grounds of appeal are:

(1)    The primary judge erred by failing to give adequate reasons for his decision.

(2)    In the alternative, the primary judge erred by failing to give proper, genuine and/or realistic consideration to BJM16’s case for judicial review.

(3)    In the further alternative, the primary judge erred by failing to conclude that the Tribunal’s finding with respect to BJM16’s capacity to pay bail was legally unreasonable.

10    The Minister’s written submissions correctly point out that the first two grounds of the amended notice of appeal are unparticularised and that the appellant’s written submissions address only the issue of the adequacy of the way the primary judge dealt with the Tribunal’s finding that BJM16 would be in a position to pay bail if he was detained upon his return to Sri Lanka which was addressed in Ground 5 of BJM16’s amended application to the Federal Circuit Court (the “bail issue”). At the hearing, counsel for BJM16 confirmed that the focus of each of these grounds is the bail issue and not the primary judge’s reasons more broadly.

11    Ground 5 was set out at J[19] as follows (as written):

The Tribunal’s erred in consideration of bail findings are irrational and/or illogical or unreasonable.

a.    The Tribunal found that on the basis of perception the applicant would be able to obtain bail (CB 185 at [63]).

b.    The Tribunal has not addressed and made findings whether the Applicant would be able to raise monies.

c.    The findings on country information is irrational/illogical and lacks logical connection to the evidence.

d.    The Tribunal thereby committed jurisdictional error.

12    Paragraph [63] of the decision record has no obvious relevance to this ground. It provided as follows:

Based on the applicant’s evidence and the country information cited above, the Tribunal is not satisfied that the applicant is of any adverse interest to the Sri Lankan authorities, including the Sri Lankan army, CID or former members of Karuna, now or in the foreseeable future, for any imputed or actual activities with the LTTE that he undertook between 2002 and 2005 or for reasons related to a bomb being found outside the gate of his property in 2007/08.

13    It appears that this should be a reference to DR[74] which states (emphasis added):

The Tribunal has accepted that the applicant departed Sri Lanka illegally. The Tribunal has, therefore, accepted that it is likely that he would face questioning at the airport, arrest on charges of illegal departure, that there is a possibility he could be placed in remand for a relatively brief period while awaiting a bail hearing, and he would later be fined if found guilty. The Tribunal has also accepted there is some possibility that the applicant may be remanded for a short period whilst waiting to be brought before a magistrate in conditions which are cramped uncomfortable and unsanitary. The applicant told the Tribunal that he has a number of landholdings which is one reason he will be perceived to be wealthy. The Tribunal is satisfied on the basis of his evidence that he would be able to pay bail and be released from remand.

14    At J[19], the primary judge set out the grounds of the amended application to the Federal Circuit Court. He then addressed remarks to each ground. In relation to the bail issue in Ground 5, the primary judge said the following at J[29]-[30]:

29.    In relation to Ground 5, Mr Kumar of counsel submitted that the finding in para. 74, that the applicant would be able to pay bail and be released from remand, was illogical and irrational. Mr Kumar of counsel drew attention to the absence of any exploration of that issue specifically by the Tribunal with the applicant in the transcript. The Tribunal did explore with the applicant what would happen to him on return to Sri Lanka, and the applicant said that he was not a wealthy person, just a common man. The Tribunal also explored with the applicant that he had land on which his uncle was working, and that his brother and family were still in Sri Lanka, as well as his wife and children.

30.    The finding by the Tribunal that the applicant will be able to pay bail was open on the material before the Tribunal and cannot be said to lack an evident or intelligible justification. No jurisdictional error of the kind identified in Ground 5 is made out.

BJM16’s submissions

15    The following submissions were made on behalf of BJM16.

16    The primary judge’s reasons at J[29] is simply a recitation of submissions and J[30] is at such a high level of generality that the basis for his Honour’s finding that there was no legal unreasonableness in this aspect of the Tribunal’s reasons was not exposed. His Honour’s ruling was merely an assertion as to a conclusion and does not disclose that the primary judge considered fundamental aspects of BJM16’s case. This submission tracks the language used by the Full Court in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 (DAO16 v MIBP) at [48] in relation to a similarly brief ruling by the same primary judge which was set out at [25] of the Full Court’s reasons as follows:

25.     The first ground alleged that the AAT failed to take into account relevant considerations and took into account irrelevant considerations, being the evidence provided by various witnesses to the effect that the appellant was engaged in active homosexual life. In relation to this ground, the Court below found that:

43.    In relation to ground 1, it is apparent from the Tribunal’s reasons that the Tribunal referred to the respective witnesses who provided statements purportedly in support of the applicant’s homosexual life. There is no basis to support the proposition that the Tribunal failed to take into account that evidence. The adverse findings made by the Tribunal in relation to the evidence provided by the applicant were open and cannot be said to lack an evident and intelligible justification. Ground 1 fails to make out any jurisdictional error.

The Full Court found that the Tribunal’s decision “demonstrated extreme illogicality and lacks an intelligible foundation”: DAO15 v MIBP at [4]. At [48], the Full Court levelled at [43] of the primary judge’s reasons in that case the same criticism as set out above.

17    The failure of the primary judge’s reasons to address in any detail the claimed legal unreasonableness in the Tribunal’s reasons also reveals a failure by the primary judge to “engage in an active intellectual process” directed on that issue. This is as much an appealable error by the primary judge as it would be a jurisdictional error in relation to a decision by an administrative decision maker as found by the Full Court in Carrascalao v Minister for Immigration and Border Protection; Taulahi v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 (Carrascalao v MIBP) at [45]:

Subsequent cases have endorsed the principle that when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria (Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; [2009] FCAFC 140 at [47]–[54] per Lindgren, Rares and Foster JJ; SZVVR v Minister for Immigration and Border Protection [2016] FCA 1364 at [24]–[26] per Collier J; Telstra Corporation Ltd v Australian Competition and Consumer Commission (2017) 344 ALR 511; 155 ALD 379; [2017] FCA 316 (Telstra v ACCC) at [62] and [71] per Foster J; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; 274 ALR 438; 119 ALD 26; [2010] FCAFC 145 (Khadgi) at [57] per Stone, Foster and Nicholas JJ; AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 at [10]–[11] per Bromberg J). This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; 136 ALR 481; 41 ALD 1 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62]).

18    Counsel for BJM16 conceded that grounds one and two of the appeal are closely related so that if the Court were to be satisfied that there is enough elsewhere in the primary judge’s reasons to be able to discern why the primary judge reached the “bare” conclusion that he did at J[30], then the Court should not “be too concerned” about reaching the same conclusion about ground two. Counsel submitted that if the first ground of appeal was made out, the matter should be remitted to the primary judge for redetermination, since all that would have been established is that the primary judge did not explain his reasoning sufficiently.

19    Counsel submitted that it was appropriate for the Court to make findings in relation to grounds one and two before making any finding in relation to ground three having regard to the fact that ground three is pleaded in the alternative, although counsel acknowledged that the form of the pleading would not be decisive. Having regard to the primary judge’s failure to expose the reasoning which led to his conclusion at J[30], although the Court would have power to determine the substantive issue in the third ground of appeal, it would not be appropriate for it to do so because the Court would not be acting as an appeal court. Rather, it would be retrying the question of the legal reasonableness of the Tribunal’s findings on the bail issue and that is the Federal Circuit Court’s role. Counsel conceded that it would be open to this Court to entertain the third ground of appeal because it would not be necessary for either party to lead evidence which was not before the primary judge.

20    In relation to the third ground of appeal, counsel for BJM16 noted the authorities that a Tribunal’s decision may be impugned for legal unreasonableness if it “lacks an evident and intelligible justification” (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]) or if the Tribunal’s state of satisfaction was not one which “could be formed by a reasonable person”, although the Court should be “slow, although not unwilling, to interfere in an appropriate case” so that, to successfully impugn the Tribunal’s decision, it must be established that the decision is “one at which no rational or logical decision maker could arrive on the same evidence” (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]).

21    There was inconsistency between the Tribunal’s finding at DR[74] and in its findings at DR[80]-[81] and, having made no initial finding that BJM16 was a landholder, the Tribunal later appeared to doubt BJM16’s case regarding his landholdings. There was no finding of the likely amount of bail or of any ultimate fine. There was therefore no apparent basis on which the Tribunal could have found that the appellant was able to make the relevant compulsory payments to the government and it follows that the primary judge erred in the findings made in his judgment at [29]-[30].

The Minister’s submissions

22    Counsel for the Minister made the following submissions.

23    The Tribunal did give intelligible and logically consistent reasons for its findings on the bail issue and DR[74] must be read in the context of its other findings, such as that at DR[69] and evidence given by the appellant at the Tribunal hearing.

24    In considering the claim that, as a Tamil, BJM16 would face discrimination, the Tribunal noted at DR[69] that BJM16 told it that “he is a landholder and worked as a farmer in the past” and went on to find that “the applicant can readily find work and support himself on return to Sri Lanka, and will not face serious harm or significant harm for this reason” (emphasis in submissions). This finding followed from BJM16’s evidence to the Tribunal, recorded at pages 10 and 13 of the transcript of the Tribunal hearing, that his uncle (concerning whom there had been no claim that he faced harm or persecution) was currently working the farm and that BJM16 was able to make more income from the family farm than he needed to support his family and that it was profitable.

25    The passages from the transcript of the Tribunal hearing on which the Minister relied were as follows (as written):

M:    Is anyone living on the family farm at the moment?

[A]:    No one

M:    Is anyone working in that land?

[A]:    Yes

M:    Who is working in that land?

[A]:    my uncle

…

M:    Ok and when you were working as a farmer before you came to Australia you were working on a farm there rather than in your family farm

[A]    mostly in my family farm because that is hereditary that belong to us so mostly I would be working there

M:    and is that far away from where your wife and children and you lived

[A]:    it is little bit far

M:    so how long did it take you to get to your farm each day from your house?

[A]:    I won’t travel everyday because we do have a hut in the farm so it is me and my uncle we used to stay there. May be in a week three or four days I will come back it takes about 4 hours travel.

…

M:    were you able to make income to support your family from the farm

[A]:     more than that

M:    so you made a profit

[A]    yes

M:    but for a few years … you went to Qatar to work was that to earn more money that you could earn from your farm

[A]:    No I didn’t go for that reason because I had C.I.D problem Karuna problem and they actually took me because of that problem to escape from them I when there.

26    The primary judge’s reasoning (as set out below) could not be described as “unintelligible”; even though his Honour “did not cite paragraphs and pages”:

(1)    The primary judge summarised the Tribunal’s reasoning process regarding BJM16’s capacity to pay for bail (and in particular the Tribunal’s acceptance that he was a landowner and its finding that he was readily able to support himself);

(2)    The primary judge observed that the Tribunal had explored with the appellant what would happen to him on his return to Sri Lanka;

(3)    The primary judge considered that the transcript of the Tribunal hearing indicated that it had explored with the appellant that he had land upon which his uncle was working, and that his family was still in Sri Lanka; and

(4)    His Honour concluded that it was open to the Tribunal to find that the appellant would be able to pay bail.

27    Where there is evidence that BJM16 not only has assets but profitable income-producing assets and family support it must be open to the Tribunal to reason that he would be able to afford bail as the Tribunal did at DR[74]. It is not logically inconsistent for the Tribunal to find that the appellant has a landholding such as the family farm (at DR[69]) and then to observe (at DR[80]) that BJM16 provided no corroborative evidence of the extent of his landholdings when it was considering his claim to fear harm on the basis that he would be perceived as wealthy.

28    The primary judge’s active engagement with the evidence that was before the Federal Circuit Court can be discerned from his Honour’s judgment. First, the primary judge briefly summarised the Tribunal’s reasons (at J[6]-[18]). The Minister says that the summary at J[13] and J[16] are particularly relevant to BJM16’s capacity to pay bail:

13.    The Tribunal made reference to the fact that the applicant was a land owner and had worked as a farmer in the past, and considered that the applicant can readily find work and support himself on return to Sri Lanka, and will not face serious harm or significant harm for this reason. The Tribunal made reference to the possibility that the applicant will be placed in remand for a relatively brief period while awaiting a bail hearing, and that he would be later fined if found guilty. The Tribunal accepted that there is a possibility the applicant may be remanded for a short period whilst waiting to be brought before a magistrate in conditions which are cramped, uncomfortable and unsanitary.

…

16.    The Tribunal made reference to the applicant’s family having a significant amount of land and the applicant being perceived as wealthy, and being targeted by authorities for that reason. The Tribunal made reference to the fact that the applicant had not provided any evidence about his landholdings, and noted that the applicant had told the Tribunal that his farm was currently being worked by his uncle. The Tribunal did not accept that the applicant will be perceived to be wealthy as a result of his family land holdings or his work in Qatar.

These paragraphs pick up the Tribunal’s reasoning at DR[69], [70] and [74], having regard to country information and the appellant’s evidence to the Tribunal at pages 10 to 13.

29    Then, at J[29], the primary judge noted that BJM16’s counsel drew attention to the absence from the transcript of any specific exploration by the Tribunal of the issue of whether BJM16 would be able to pay bail. The primary judge observed that the Tribunal had explored with BJM16 what would happen to him on his return to Sri Lanka including that he had land on which his uncle was working and that his brother and family were still in Sri Lanka as well as his wife and children. On this basis, counsel submitted that J[29] cannot fairly be described as mere recitation because the primary judge was engaging with submissions made by BJM16’s counsel concerning issues said to arise from the transcript in relation to the Tribunal’s exploration of matters with BJM16 at the hearing. Although the primary judge does not provide citations, it is apparent that the primary judge derived his information from pages 10-13 of the transcript of the Tribunal hearing.

30    Further, the appellant did not say why, on a principled approach, the administrative law ground of “proper, genuine and realistic consideration” should be applied to questions of appealable error by the primary judge. Counsel submitted that the test has been found to be problematic even in the administrative law context and prone to invite impermissible merits review, relying on Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [29]-[36] and Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]. Counsel submitted that the ground adds nothing to the “failure to give adequate reasons” ground.

BJM16’s submissions in reply

31    Counsel for BJM16 submitted that, in accordance with long standing authority, a judge’s reasons need to give a sufficient explanation to enable an appellate jurisdiction to be exercised – a different benchmark from whether the reasons are intelligible, reasonable or otherwise. It is a less forgiving standard than that which an administrative decision-maker is required to meet. In an effort to establish the final sentence of J[29] as a basis for the finding at J[30], counsel for the Minister took the Court to places in the primary judge’s reasons where his Honour referred to a matter the Tribunal explored. However, that does not meet the required standard.

32    Whether or not the amount of bail or fine appears in the country information, that information is not before the Court and there is no finding about the amount in the Tribunal’s reasons. That significantly undermines the legal reasonableness of the Tribunal’s conclusion.

33    Last, the sentence which appears at DR[69] “[t]he Tribunal considers that the applicant can readily find work and support himself on return to Sri Lanka, and will not face serious harm or significant harm for this reason” indicates that BJM16 was being supported by his own labours, not by his landholding, so that it does not support the Tribunal’s reasoning at DR[74] which suggests that he can pay his bail from income derived as a landowner, not a land worker.

Consideration

34    As discussed by Flick J in BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450; [2016] FCA 802 at [8]-[10], the judicial obligation to provide reasons for decisions derives from the judicial function and the “defining characteristics which mark a court apart from other decision-making bodies” (see Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [67] per French CJ), and it serves the function of enabling a matter to be properly considered on appeal. The provision of clear reasons for decisions also serves many other functions discussed in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 441-2 per Meagher JA, which include assisting a party and the broader public to understand why the decision was made thus maintaining public acceptance of the judicial system and (hopefully) avoiding the feeling of grievance and injustice which a losing party might reasonably feel when they do not understand why a decision is made. Sufficient reasons guard against unconsidered and impulsive decisions.

35    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”: see DAO16 v MIBP at [47] quoting Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 per Mahoney JA.

36    In AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 (AXL16 v MIBP), (at [21]) Perram J found reasons given by the same trial judge to be inadequate in circumstances where the Court could not discern why the primary judge rejected the central argument put by the appellant. The central argument was that the Tribunal’s reasons were illogical because they involved a non-sequitur. Justice Perram found that it was not enough to deal with this central argument for the primary judge to find that the Tribunal’s reasons were logical – that was the question not the answer.

37    Unlike AXL16 v MIBP, the written submissions made by BJM16’s counsel to the primary judge are not before the Court. Accordingly, this Court can only rely on the claims made in ground 5 and J[29] to understand how the case was put to the primary judge. On that basis, the elements of the claim that the Tribunal’s finding at DR[74] was illogical or unreasonable were:

(1)    The transcript of the Tribunal proceedings demonstrates that the Tribunal did not specifically explore with BJM16 how he would raise moneys to pay bail and there was no finding about that; and

(2)    There was no logical connection between the country information and the evidence before the Tribunal.

38    There is no doubt that the finding at J[30] is conclusionary and that the rationale for that conclusion in J[29] is sparse. There are only two sentences in J[29] which might be thought to grapple with the argument raised by counsel for BJM16 in the Federal Circuit Court. The first sentence is literally true – the transcript of the Tribunal hearing does demonstrate that the Tribunal did explore what would happen to BJM16 when he returned to Sri Lanka and, in the context of his claim that he was at risk because people might think he was wealthy, he said that he was not a wealthy man, but a common man. That does not either support or contradict the appellant’s capacity to pay bail, although it is indicative of the primary judge attempting to engage with the argument put to him by BJM16’s counsel. The second sentence – which acknowledges BJM’s evidence to the Tribunal that he has a landholding (on which his uncle was working) and family in Sri Lanka – does not go as far as the evidence in the transcript (quoted at [25] above) that BJM16 was able to provide for his family and make a profit from the family’s landholding.

39    Having said that, I accept the Minister’s submission that the primary judge was addressing that part of the transcript which contains the evidence that BJM16 was able to provide for his family and make a profit from his work on the landholding and that he had family around him. That is evidence which provides the basis of the finding at DR[69], which is referred to (without citation) by the primary judge at J[13] (see [28] above). I also accept the Minister’s submission that there is no necessary inconsistency between the Tribunal’s findings at DR[69] and DR[81] for the reason given by the Minister. I do not accept the submission made by BJM16’s counsel in reply concerning the appropriate reading of DR[69] because it ignores the reference to the landholding in the penultimate sentence of that paragraph (see [7(1)] above). It is my view the language of the penultimate sentence of DR[69] is to be interpreted as an acceptance by the Tribunal of the evidence given by BJM16 (including at the hearing) that he is a landholder and had previously worked as a farmer. That does provide a basis for the finding that he could “readily” work and support himself in Sri Lanka. It was also a basis for the finding in DR[74], albeit that there is no reference in the Tribunal’s reasons to the amount of bail which might have to be paid or, apparently, evidence before the primary judge on that issue.

40    The primary judge’s process of reasoning and “constituent facts” should be transparent – or at least discernible – from the published reasons. In this case, they are not readily discernible. The exigencies of an ex tempore judgment in a high-volume court do not justify the brevity with which his Honour addressed the fifth ground. However, in my view, this case is distinguishable from DAO16 v MIBP where the Full Court found that the primary judge’s reasons did not disclose that the primary judge had addressed the issue of whether the Tribunal had considered fundamental aspects of that appellant’s case, for example, that Tribunal’s failure to deal adequately with the evidence of four independent witnesses. It is also distinguishable from AXL16 v MIBP in which the central argument concerning a gap in the logic applied by the Tribunal in that case was plainly not addressed by the primary judge. I am satisfied that the primary judge’s limited reasoning was directed to whether the Tribunal in BJM16’s case had considered the issue of whether the appellant had a capacity to pay bail.

41    Despite the limitations of the primary judge’s reasons in relation to ground five, I am not persuaded that the appellant has made out a basis for remitting the matter to the primary judge for reconsideration. That is primarily because I do not consider that it would have utility for the reasons which follow. I therefore do not accept the submission made by counsel for BJM16 that it would be inappropriate for this Court, on appeal, to consider whether ground three of the notice of appeal is made out.

42    The primary judge’s reasons do not address the question of the interrelationship of the appellant’s evidence and country information, a matter raised in the fifth ground of review filed in the Federal Circuit Court. As neither BJM16’s written submissions nor the transcript of those proceedings is before the Court, I do not know if BJM16’s (then) counsel relied on that element of the grounds.

43    I called on the parties to provide a copy of the DFAT Country Information Report Sri Lanka, 18 December 2015, which was plainly before the Tribunal as it is footnoted and quoted in the decision record (see DR[71]). I made that call because the general content of the country information is familiar to judges operating in the migration jurisdiction due to the volume of applications received from Tamils who rely on grounds that they fear to return to Sri Lanka as a failed asylum seeker and as a person who has left Sri Lanka illegally. I considered it appropriate that, in the interest of the administration of justice, this information be formally before the Court in considering whether ground three was made out.

44    Relevantly, to the circumstances of those returning to Sri Lanka who had departed illegally, the report provided as follows:

Detention and Prison

5.13    In general, prison conditions in Sri Lanka do not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions. Sri Lankan prisons are estimated to hold three times their capacity. …

…

Treatment of Returnees

5.27    Article 14(1) (i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act 1949 (the I&E Act). Under Sections 34 and 45(1) (b) of the Act, it is an offence to depart other than via an approved port of departure, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 2,000). In practice, penalties are applied on a discretionary basis and are almost always a fine.

…

Offences under the Immigrants and Emigrants Act

5.32    Most Sri Lankan returnees, including those from Australia, are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the closest Magistrates Court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged may be held at a nearby prison.

5.33    DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture. There is no general requirement to report to police or police stations between hearings. The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures (see ‘Facilitators and organisers below).

5.34    DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim.

45    While those passages of the report are not quoted in full in the Tribunal’s decision record, the language used in DR[74] makes it plain that the Tribunal has had regard to it in relation to the position of those who departed Sri Lanka illegally. Having regard to this evidence that there may be no bail payable because bail may be achieved either on personal surety or upon a family member acting as guarantor, and in light of BJM16’s evidence as set out above, it was open to the Tribunal to make the finding that it did concerning his ability to pay bail and be released on remand on a legally reasonable basis. Accordingly, I do not accept that the primary judge’s conclusion at J[30] was in error, even if it was not adequately explained.

46    Ground three of the appeal as pleaded is therefore not made out. In written submissions, counsel for BJM16 used a bundled phrase of “bail or of any ultimate fine” without seeking leave to extend the ambit of the ground pleaded in the Federal Circuit Court and this Court, which dealt only with bail. Leave should not be granted to such an extension because, having regard to BJM16’s evidence that his landholding is profit-making and country information as to the amount of the fine and that it may be paid by instalments, such a ground would lack merit.

47    For completeness, I note that in AXL16 v MIBP at [24], Perram J accepted that judges are subject to a “similar duty” to that imposed on administrative decision-makers to engage in “an active intellectual process directed at” the claim being made. In light of the matters addressed above, and for the reasons submitted by the Minister, I do not accept that the primary judge did not engage with the claim being made, albeit that how his Honour engaged with the claim should have been better explained.

Conclusion

48    For the reasons set out above, I will order that the appeal be dismissed.

49    The Minister filed an affidavit sworn by Svetlana Zarucki, a solicitor employed by Clayton Utz, in support of an application for an award of lump sum costs in the amount of $7,850 (inclusive of counsel’s fees). I note that this exceeds the amount of $6,439 which may be claimed in respect of a short form bill of costs and disbursements in a migration appeal case finalised after a final hearing (see cl 15.1(d) of Schedule 3 to the Federal Court Rules 2011 (Cth)). Ms Zarucki deposes that she has been informed by the partner responsible for this matter, Mr Chami, who has considerable experience in matters of this kind, that on a taxation of costs it would be customary to receive between 65% and 75% of the respondent’s professional costs plus 100% of counsel fees, and the amount claimed is at the mid-point of those costs. Having regard to the fact that 65% of professional costs (plus 100% of counsel’s fees) would be $7,381, an amount which is also in excess of the short form bill amount, I am not inclined to allow more than 65% of professional costs. Accordingly, I will order that the appellant pay the Minister’s costs in a lump sum amount of $7,381.

Associate:

Dated: 18 February 2019