FEDERAL COURT OF AUSTRALIA

AEW18 v Minister for Home Affairs [2019] FCA 208

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed, with costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The appellant is a citizen of Sri Lanka who was born in 1966. He first arrived in Australia as an unauthorised maritime arrival on 3 September 2012. On 30 January 2017 he applied for a Temporary Protection (subclass 785) visa, claiming that he was a person to whom Australia owed protection obligations pursuant to ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth). He claimed that he had been kidnapped, extorted and threatened by members of the criminal investigation department (CID) of Sri Lanka and that he feared harm from the CID, the Sri Lankan Army and the Sri Lankan police if required to return to Sri Lanka because of his Tamil ethnicity, his imputed support for the Liberation Tigers of Tamil Eelam (LTTE), his imputed opposition to the Sri Lankan government and his status as a failed asylum seeker.

2    On 5 May 2017 the appellant’s visa was rejected by a delegate of the first respondent, the Minister for Home Affairs. That decision is a “fast track reviewable decision” as defined in s 473BB of the Act, and on 17 May 2017 it was referred to the Immigration Assessment Authority (IAA) for review. On 19 December 2017 the appellant was notified of the decision of the IAA affirming the decision of the delegate. The appellant then applied to the Federal Circuit Court of Australia (FCCA) for the decision of the IAA to be quashed. On 6 July 2018 a judge of the FCCA dismissed that application; AEW18 v Minister for Home Affairs & Anor [2018] FCCA 1842.

3    The appellant then appealed to this court. His appeal relies on 6 grounds:

1.    That the FCCA failed to hold that the decision of the IAA was affected by jurisdictional error in finding at [32] that there was not a ‘real chance’ the applicant would again be subjected to extortion because of his Tamil ethnicity or for being perceived wealthy. The FCCA failed to find that this aspect of the IAA’s decision was lacking an evident and intelligible justification and was unreasonable.

2.    That the FCCA failed to hold that the IAA did not have authority to review the decision of the delegate under s 473CC of the Act as the Minister had not validly referred the decision to the IAA under s 473CA of the Act.

3.    That as a result of the Minister’s failure to comply with s 67(2) of the Act, the IAA could not determine whether any material provided to it by the secretary under s 473CB(1)(c) of the Act was ‘new information’, and as a result it was not in a position to comply with s 473DD of the Act not to consider any ‘new information’, nor was it able properly to consider the exercise of the discretions otherwise available to it to consider the ‘new information’ within the parameters set out in s 473DD; nor was it able to determine its obligations under s 473DE of the Act in relation to giving certain ‘new information’ to the applicant for comment. The primary judge failed to hold that this was a jurisdictional error.

4.    The country information before the IAA indicated that there have been significant improvements in the human rights situation for Tamils in Sri Lanka since the end of the civil war in 2012. However, the mere fact that the human rights situation has improved does not mean that Tamils from North and East no longer face a real chance of persecution. The IAA erred in reasoning that because the human rights situation for Tamils has improved, therefore “there is not a real chance the applicant would face harm from the authorities in Sri Lanka for being a Tamil”. The primary judge failed to identify and hold that this was a jurisdictional error.

5.    That although there was country information which the IAA accepted of “Tamils being abducted and of ongoing human rights violations in Sri Lanka”, the IAA failed to take into account the possibility that those who suffered human rights violations did not have real or perceived links with the LTTE and failed to foreclose reasonable speculation about the chance that these human rights violations were carried out on Tamils who did not have real or perceived links to the LTTE. On this basis, the primary judge failed to identify and hold that the IAA did not properly apply the real chance test explained in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 179; (1999) 93 FCR 200.

6.    That the primary judge made a jurisdictional error in dismissing the Further Amended application in circumstances where the substantive grounds in it were meritorious.

4    The appellant filed no written submissions and represented himself at the hearing of the appeal with the assistance of a Tamil interpreter. The Minister was represented by Mr Nicholas Swan of counsel and filed written submissions in advance of the hearing.

2.    THE DECISION OF THE IAA

5    Notice of the decision of the delegate was dated 5 May 2017, although the decision of the delegate is not dated, a matter that gives rise to grounds 2 and 3 of the appeal. As noted above, following the decision, the Minister referred the matter to the IAA for review on 15 May 2017.

6    The decision of the IAA summarises the appellant’s claims. In short, from 1985 to 1991 the appellant worked as a salesman in a textile shop in his home town. Between 1991 and 1995 he lived and worked in Saudi Arabia. In 1996 he opened a grocery store in his home town. In 2006 a close friend of his, who was also a customer, was kidnapped and shot dead because he was supplying goods to the LTTE, which he had bought from the appellant.

7    The IAA records the appellant’s claims that he was abducted twice from his home by men in a white van, who were from the CID. The first time was in December 2006, the second in December 2011. Each time he was questioned about his connections with the LTTE, because of his friend who was murdered. The men threatened his life, tortured him, and demanded he reveal his connection to the LTTE, or they would charge him under the anti-terrorism laws. Each time he paid 5 lakhs to be released. He was told he would need to report to them whenever they demanded it, and they warned him not to leave the area or he would be killed. From December 2006 until August 2007 he did not return to live in his home town. He stayed in various places with family members. In 2007 he fled to Dubai and from there travelled to Iraq to work, where he stayed for 2 years before going to Afghanistan for 18 months. Twice he went back to Sri Lanka for short periods, once for 6 months while recovering from a workplace injury that caused him to lose his middle finger on his right hand. To avoid problems at the airport, on each occasion when he arrived and departed Sri Lanka his uncle paid money to people to assist his progress through the airport. After the second abduction in December 2011 he did not return home, but stayed in 3 different places until August 2012, when he came to Australia by boat. Twice in 2013 and once in 2015, men visited his wife in his home town in a white van and demanded money. They said that the appellant had connections with the LTTE. His wife paid them out of fear.

8    The appellant claimed that he is old enough to be viewed as having participated with the LTTE during the war and although he was not and never has been a member of the LTTE, he considers that he is profiled as such by the police and the members of his community. He fears that he will be murdered by vigilante Sinhalese, or will die when arrested or detained by the authorities. Further, he fears that his attempt to obtain asylum in Australia will be viewed as confirmation that he has been involved with the LTTE. He fears that he will be detained at the airport, assaulted and questioned upon his arrival in Sri Lanka. Furthermore, he claims that he is ill-equipped to deal with the difficulties he will face as a result of the mental health issues that he suffers arising from his experiences over 32 months on Nauru, and in particular from the physical abuse he suffered from the Nauruan police.

9    The IAA accepted a large portion of the appellant’s claims. Relying on country information about the history of “white van” abductions and extra-judicial killings in Sri Lanka, from a UK Home Office report on Sri Lanka from March 2017, it accepted the appellant’s claim that that his friend was abducted and murdered. It also accepted that in December 2006 the appellant was abducted by men in a white van and that he paid the sum of 5 lakhs to be released. It found that the abduction was sponsored by Sri Lankan authorities, either the CID or otherwise. It further accepted the explanation given in the appellant’s written statement of interview that the main reason for the abduction was for money. In that context, the IAA was not satisfied that the reason for the abduction was for the purpose of gaining information about the LTTE and whether the appellant was involved in the LTTE. It considered that had the authorities been interested in the appellant for actual or perceived connections with the LTTE then he would not have been released.

10    The IAA also accepted that for about 8 months after the first abduction the appellant did not live at home and instead stayed with family members, out of fear of being abducted again and the threats to his life. However, it did not consider that he was of continuing interest to the authorities as a result of connections with the LTTE, because he had been released in return for payment. It considered that if the authorities had wanted to pursue him further, they would have known where to look, given police regulations allowing for household registration for every Tamil household.

11    The IAA also accepted that the appellant had travelled as stated, and that his uncle had paid at the airport to ensure that he could pass through. However, it considered at [19]:

… After the first abduction by CID members, the applicant was able to depart the country lawfully using his passport on three occasions when he was working in Iraq and Afghanistan. However, there is nothing to say that had he not paid bribes he would have had problems. ...Taking into account country information about what has happened to LTTE cadres, members and supporters, particularly after the war ended in May 2009, I find the applicant did not have a profile with the Sri Lankan authorities as an LTTE member or supporter who posed a threat to national security, and who needed to be stopped from departing at an airport during the war, or stopped after the war and sent to a rehabilitation camp or charged with terrorist related offences, or detained and questioned on return at the airport, regardless of the payment of bribes to airport staff.

12    The IAA also accepted that in December 2011, a month after the appellant returned to Sri Lanka the third time, he was abducted from his home by 4 officers (whom he thought were from the CID) and that he was mistreated and then released the following morning. The IAA said at [20]:

... There is credible reporting on the practice of white van abductions and other abductions during this period in Sri Lanka’s history, I accept the applicant was abducted a second time, and that the abduction was sponsored by Sri Lankan authorities... However, I am not satisfied that the applicant was abducted in 2011 because the abductors perceived him to be involved with the LTTE. Given the applicant had been working overseas, and was a business owner in Sri Lanka, he would have been considered a target for extortion.

13    The IAA accepted that the appellant lived with family and not in his own home for about 8 months after the second abduction, but noted that if the authorities had been interested in him for any real or perceived connections with the LTTE it would have been easy for them to locate him. It also accepted that the appellant’s wife had been threatened and extorted 3 times, twice in 2013 and once in 2015, but was satisfied that this was because he and his wife were considered to have money, and not because of any perception of LTTE links.

14    Based on country information available to it, and the appellant’s lack of an LTTE profile, the IAA found that there was a remote chance that the appellant would be subject to white van abductions, or other harm by the Sri Lankan authorities, persons sponsored by them or by vigilantes. It was not satisfied that the appellant would be harmed or extorted on the basis of his Tamil ethnicity. Based on country information as to the significant reduction in abductions for ransom and because his wife had not been subject of further demands since 2015, the IAA was not satisfied that there was a real chance he would be subjected to extortion, or to any other harm because of his Tamil ethnicity or perceived wealth.

15    The IAA found that there was not a real chance that the appellant would face harm because he had sought asylum in Australia. Nor did it accept that that any difficulties that the appellant might encounter as a result of his mental health amounted to persecution for the purposes of s 5J(1) of the Act. As a result, the IAA was not satisfied that the appellant met the requirements of s 36(2)(a) or s 36(2)(aa) of the Act.

3.    THE FCCA DECISION

16    The appellant relied on the following grounds before the FCCA:

The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in that:

1.    The Authority’s finding at [32] that there was not a ‘real chance’ the applicant would again be subjected to extortion for being perceived wealthy, was lacking an evident and intelligible justification and was unreasonable.

Particulars:

a.     In the light of the Authority’s findings:

•    at [16] and [20] accepting that the applicant was subject to white van abductions for extortion in December 2006 and in December 2011 (post conflict);

•    at [22] accepting that the applicant’s wife was threatened and extorted for money three times by men in a white van claiming to be CID in 2013 and 2015;

•    at [32] accepting that on return the applicant ‘may be perceived as wealthy – the impugned finding at [32] was not open from the DFAT country information at [28] and [32] upon which the Authority relied to support its conclusion at [32].

b.    This country information was in respect of the ‘significant reduction’ of incidents of abductions for ransom since the end of the civil conflict in 2009 from their ‘frequent occurrence’ during the conflict.

c.    In the light of the Authority’s findings set out at 1. a., the finding that the applicant’s wife had not been subjected to further demands for money since 2015 also did not amount to an evident and intelligible justification for the impugned conclusion, either considered separately from or cumulatively with the country information.

In the alternative:

2.    The Authority did not have authority to review the delegate’s decision under s 473CC Migration Act 1958 (the Act) as the Minister had not validly referred the decision to the Authority under of the Act.

Particulars

a.    Section 473CA requires the Minister to refer a fast track reviewable decision to the Authority as soon as practicable after the decision is made.

b.    Section 67 of the Act requires the Minister to make a record of a decision to refuse to grant a visa, and that the record must state the day and time of its making, and that the decision is deemed to have been made on the day and at the time the record is made, such that the Minister is functus officio only after the Minister has stated the day and time on the decision record.

c.    The delegate’s decision did not comply with s 67(2) in that it did not state the time of its making.

d.    The valid exercise of the Minister’s obligations under s 473CA to refer a fast track reviewable decision was conditional upon the Minister’s compliance with s 67.

Further or in the alternative:

3.    As a result of the Minister’s failure to comply with s 67(2), the Authority could not determine whether any material provided to it by the Secretary under s 473CB(1)(c) of the Act was ‘new information’, and as a result it was not in a position to comply with s 473DD of the Act not to consider any ‘new information’; nor was it able properly to consider the exercise of the discretions otherwise available to it to consider ‘new information’ within the parameters set out in s 473DD; nor was it able to determine its obligations under s 473DE of the Act in relation to giving certain ‘new information’ to the applicant for comment.

Particulars

a.    Section 473DC(1) of the Act defines ‘new information’ to be documents or information that were not before the Minister when the Minister made the decision under

b.    Section 76(3) provides the Minister’s decision is taken to have been made on the day and at the time the record is made.

17    In relation to ground 1, the primary judge rejected the appellant’s submission that the finding of the IAA was solely based on the DFAT report of 2017. The primary judge found that the IAA took into account and made findings in relation to incidents that had occurred concerning extortion more generally and based on different and additional country information. Furthermore, the primary judge accepted the submission made on behalf of the Minister that even if the IAA conclusions were based solely on the 2017 DFAT report, they could not be said to be illogical, unreasonable or irrational.

18    In relation to grounds 2 and 3, the primary judge found that they were dependent on a proposition that non-compliance with s 67(2) of the Act affects the review procedure under Part 7AA and/or the determination of material under ss 473CB, 473CD and 473DD. He rejected that there is any basis for finding that non-compliance with s 67(2) has an impact on the information before the Secretary or information the subject of s 473BC or 473DD of the Act. The primary judge found that it was apparent from the terms of s 67(5) of the Act that non-compliance with s 67(2) could not give rise to any invalidity in the decision of the delegate, and therefore could not have an impact on the review under Part 7AA of the Act by the IAA. The primary judge accepted the Minister’s submission that the making of the record under s 67 of the Act is concerned with the making of the record internally by the Minister. The affidavit evidence of Mr Crawford (an employee of the department) indicated that there was a date and time of making of the record. The primary judge also accepted the Minister’s submission that on its natural and ordinary reading, the consequence of s 67(3) is that the notification of the reasons sent to the appellant is deemed to include the time and date that the record was made. In these circumstances, quite separately from the terms of s 67(5) of the Act, grounds 2 and 3 did not succeed.

19     Accordingly, the primary judge dismissed the application.

4.    THE RELEVANT LEGISLATION

20    The following sections of the Act are relevant to the consideration of grounds 2 and 3 of this appeal.

21    Part 2 of the Act is entitled “Arrival, Presence and Departure of Persons”. Division 3 of that Part is entitled “Visas for non-citizens”. Section 65 is entitled “Decision to grant or refuse visa” and concerns the making of the decision by the Minister after considering a valid application for a visa. It provides:

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)     the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)      any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

    Note 1: Section 84 allows the Minister to suspend the processing of applications for visas of a kind specified in a determination made under that section. Section 86 prevents the Minister from granting a visa of a kind specified in a determination under section 85 if the number of such visas granted in a specified financial year has reached a specified maximum number.

    Note 2: See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s power under that section.

    Note 3: Decisions to refuse to grant protection visas to fast track review applicants must generally be referred to the Immigration Assessment Authority: see Part 7AA.

(2)    To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).

22    Section 66 is entitled “Notification of decision” and concerns the manner in which an applicant is notified of the result. It provides:

(1)      When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

(2)      Notification of a decision to refuse an application for a visa must:

(a)      if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and

(b)      if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and

(c)      unless subsection (3) applies to the application—give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

(d)      if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:

(i)      that the decision can be reviewed; and

(ii)      the time in which the application for review may be made; and

(iii)      who can apply for the review; and

(iv)    where the application for review can be made; and

(e)      in the case of a fast track reviewable decision—state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and

(f)     in the case of a fast track decision that is not a fast track reviewable decision—state that the decision is not subject to review under Part 5, 7 or 7AA.

(3)      This subsection applies to an application for a visa if:

(a)      the visa is a visa that cannot be granted while the applicant is in the migration zone; and

(b)      this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

(4)      Failure to give notification of a decision does not affect the validity of the decision.

(5)      This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

    Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

23     Section 67 is entitled “Grant and refusal of visa – how and when” and provides:

(1)      The following decisions are taken to be made by the Minister causing a record to be made of the decision:

(a)     a decision to grant a visa;

(b)      a decision to refuse to grant a visa.

(2)      The record must state the day and time of its making.

(3)      The decision is taken to have been made on the day and at the time the record is made.

(4)      The Minister has no power to vary or revoke the decision after the day and time the record is made.

(5)      Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).

24    Part 7 of the Act is entitled “Review of Part 7 – Reviewable Decisions”. Part 7AA is entitled “Fast Track Review Process in Relation to Certain Protection Visa Decisions”. The following provisions are relevant to this appeal.

Division 2—Referral of fast track reviewable decisions to Immigration Assessment Authority

473CA        Referral of fast track reviewable decisions

    The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

473CC        Review of decision

(1)        The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

(2)        The Immigration Assessment Authority may:

(a)      affirm the fast track reviewable decision; or

(b)    remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

Division 3—Conduct of review

Subdivision C—Additional information

473DC        Getting new information

(1)      Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)        were not before the Minister when the Minister made the decision under section 65; and

(b)        the Immigration Assessment Authority considers may be relevant.

(2)        The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Immigration Assessment Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)        Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)        in writing; or

(b)        at an interview, whether conducted in person, by telephone or in any other way.

473DD        Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Immigration Assessment Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Immigration Assessment Authority that, in relation to any new information given, or proposed to be given, to the Immigration Assessment Authority by the referred applicant, the new information:

(i)        was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)        is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

5.    THE APPEAL

25    In ground 1 the appellant contends that the primary judge failed to find that the decision of the IAA was affected by jurisdictional error in its finding at [32] that there was not a real chance that the appellant would again be subjected to extortion because of his Tamil ethnicity or for being perceived to be wealthy. He contends that the decision of the IAA was lacking an evident and intelligible justification and was unreasonable. In particulars appended to this ground, the appellant contends that having accepted that the appellant and his wife were subjected to white van abductions and extorted for money in 2006, 2011 and 2015, and also having accepted that upon his return to Sri Lanka the appellant may be perceived to be wealthy, the finding at [32] was not open from the DFAT country information upon which the IAA relied. The appellant also contends that the finding of the IAA that the appellant’s wife has not been the subject of extortion since 2015 did not provide an intelligible justification for the impugned conclusion.

26    In [32] of its reasons the IAA found as follows:

I have found the applicant was subject to extortion in December 2006 and December 2011. I consider that if returned to Sri Lanka, given the applicant’s family continue to run three stores, and he still owns one of them, and he has been living and working in Australia (and worked in three other countries before coming to Australia), that the applicant may be perceived as wealthy. Based on DFAT reporting from January 2017 about the significant reduction in the incidents of abductions for ransom, and since 2015 the applicant’s wife has not been subjected to further demands for money, I find there is not a real chance the applicant will again be subjected to extortion, or any other harm, because of his Tamil ethnicity, or for being perceived wealthy.

27    Central to the reasoning of the IAA is the conclusion that there has been a significant reduction in the incidents of abductions for ransom. Although [32] refers to DFAT reporting from January 2017, it is evident from other parts of the decision of the IAA that it has considered country information concerning improvements in the situation in Sri Lanka with respect to abductions pre-dating the 2017 report. It refers in [26] to a UK Home Office March 2017 report that indicates that since the new government came to office in 2015 white van abductions are now seldom reported. In [27] it refers to the results of a UK Home Office fact finding mission in Sri Lanka in July 2016 which reports the UN High Commissioner for Human Rights as commenting that such abductions are mostly a thing of the past. At [28] the IAA refers to the 2017 DFAT assessment, and notes that it reports that several credible sources in Sri Lanka have told DFAT that disappearances are no longer a common occurrence.

28    This ground first concerns an alleged failure on the part of the IAA actively to engage with the appellant’s claims that he would face serious or significant harm should he return to Sri Lanka on the basis that he would again be subjected to extortion because of his Tamil ethnicity or for being perceived to be wealthy.

29    If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.

30    On must be careful not to permit a ground based on a failure to consider a claim to slide into a merits review of the decision of the IAA; Carrascalao at [35]. The principle does not require the decision maker to refer in the reasons to every piece of evidence and every contention made. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter, bearing in mind that one does not read the decision below with the eye attuned to the perception of error; Carrascalao at [45]. By contrast, the choice of and assessment of and weight to attribute to country information is a matter for the IAA; see, by analogy, NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (Gray, Tamberlin and Lander JJ).

31    In the present case, I perceive no absence of rational connection between the country information cited by the IAA (whether confined to the 2017 DFAT report or more broadly) and the finding that there was not a real chance that the appellant will again be subject to extortion. The IAA concluded at [32] that whilst the appellant was subject to extortion in 2006 and 2011, two factors contributed to its conclusion that there was no real chance that he would be again subjected to extortion upon his return to Sri Lanka. First, that the DFAT report in January 2017 indicated that there had been a significant reduction in the incidents of abductions for ransom. Secondly, that his wife had not been the subject of any further demands for money since 2015, despite the appellant’s family continuing to run three stores. These factors were based on the evidence available to the IAA and provide an intelligible reason for the conclusion that it reached.

32    The second aspect of this ground concerns an allegation that the decision of the IAA was legally unreasonable. In Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) the Full Court (Allsop CJ, Griffiths and Wigney JJ) identified, some of the relevant principles concerning legal unreasonableness:

58     First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at 350[26] and 351[29] (French CJ), 362[63] (Hayne, Kiefel and Bell JJ) and 370[88] (Gageler J); Singh at 445[43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).

59       Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at 363[66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197 at 203[23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).

60    Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at 350[27]-351[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).

    …

62    Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: Li at 351[29] (French CJ), 363[66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at 375[105] (Gageler J); Stretton at [11] (Allsop CJ).

63    Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at 349[24] (French CJ), 363[67]-364[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445[42].

64    Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at 446[45]-447[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at 367[76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).

65    Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at 445[42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

33    Having regard to the principles set out, I do not consider that the reasoning expressed by the IAA in relation to the danger of further extortion to be arbitrary, capricious or irrational in the sense described.

34    In the result, in my view the decision of the primary judge in relation to this ground reflects no error. Ground 1 of the appeal must be dismissed.

35    In ground 2 the appellant contends that the primary judge erred in failing to find that the IAA had no authority to review the delegate’s decision under s 473CC of the Act because the Minister had not validly referred the decision to the IAA under s 473CA of the Act. In the particulars appended to the ground, the appellant contends that s 473CA requires the Minister to refer a fast track reviewable decision to the IAA as soon as practicable after the decision is made. Section 67 requires the Minister to make a record of a decision to refuse to grant a visa and the record must state the day and time of its making. By s 67(3), the decision is taken to have been made on the day and at the time the record is made. By s 67(4) the Minister has no power to vary or revoke the decision after the day and time the record is made. By failing to state the date and time that the decision of the delegate was made, the decision of the delegate did not comply with s 67(2). The appellant contends that valid exercise of the Minister’s obligations under s 473CA to refer a fast track reviewable decision was conditional upon the Minister’s compliance with s 67.

36    The decision of the delegate was an exercise of power under s 65 of the Act to grant or refuse to grant a visa. Section 65 sets out the matters in respect of which the Minister must be satisfied before a decision to grant the visa may be made. Section 66 sets out how the Minister is to notify the applicant for the visa of the decision to grant or refuse the visa. Section 66(2)(a) requires that notification be given of any criterion that the applicant did not satisfy. Subsection 66(2)(c) includes a requirement that, except in circumstances specified in s 66(3), the Minister must give “written reasons... why the criterion was not satisfied...”. The delegate’s reasons complied with this sub-section. Sub-sections 66(2)(d) – (f) provide that the Minister must notify the applicant of a right to have the decision reviewed if the circumstances arising under sub-sections 66(2)(d) – (f) apply. In the present case the appellant was a “fast track applicant” within s 5(1) of the Act and accordingly the Minister was obliged by s 66(2)(e) of the Act to give notice that the decision had been referred for review under Part 7AA and that it was not subject to review under Part 5 or Part 7. The notification given by the delegate on 5 May 2017 complied with this requirement.

37    Section 67(1) provides that a decision to grant or refuse a visa are taken to be made “by the Minister causing a record to be made of the decision”. Sub-section 67(2) requires that the record must state the day and time of its making. By sub-section 67(3) the decision is taken to have been made on the time and date that the “record” was made. Subsection 67(4) gives the evident reason for precision in maintaining the record, by providing that after that day and time the Minister has no power to vary or revoke the decision.

38    It may be noted that there is a material linguistic distinction between the s 66(2)(c) requirement for the provision of “written reasons” and the s 67(1) requirement that the Minister cause a “record” to be made of the decision. It is the day and the time of the making of the record of the decision, not the written reasons, that s 66(2) requires. The Minister submits that the word “record” is to be given its ordinary English meaning of “a written or otherwise permanently recorded account of a fact or event” (citing the Shorter Oxford English Dictionary, 6th ed, 2007), the fact or event here being the decision to grant or refuse a visa. This is to be contrasted with the “written reasons” identified in s 66. The Minister relies on an affidavit given by an assistant director of the Protection Assessment NSW Section, Humanitarian Program Operations Branch of the Department of Home Affairs, which was admitted into evidence before the primary judge. The affidavit explains that the practice of the Department is to create a permanent record in a database of the fact of a decision having been made under s 65 in relation to a visa application together with the time and day of the decision. The evidence indicates that such a record was created in respect of the decision of the delegate.

39    I accept that the ordinary meaning of the word “record” proposed by the Minister accords with the statutory scheme and suitably defines the subject matter of s 67(1). By creating in the database an entry specifying the day and time of the decision to refuse to grant the appellant’s visa, the Minister satisfied his obligations under s 67(2). In this context, the absence of a date and time on the written reasons provided by the delegate is irrelevant.

40    Furthermore, the argument advanced by the appellant is that by reason of a failure to create a record of the decision the decision itself is invalid. Caution should be exercised in concluding that a referral of an administrative decision for review was invalid on the basis of a technical deficiency. In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481 the High Court considered the nature of a fast track reviewable decision under Part 7AA of the Act. It said at [39], [52] (per Gageler, Keane and Nettle JJ, emphasis added):

39     Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd has been aptly described as a "landmark decision" in the early history of the Administrative Appeals Tribunal. The Full Court of the Federal Court there construed the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) to a "decision" in respect of which an enactment might provide for review by that Tribunal as a reference to nothing more than "a decision in fact made, regardless of whether or not it is a legally effective decision". The fundamental reason for adopting that construction was fulfilment of the evident legislative purpose of the conferral of jurisdiction on the Tribunal "to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task": "[i]f administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review" and "technicality would be introduced at the outset". In the context of the Administrative Appeals Tribunal, that construction has not since been doubted.

    ...

52        The limitations on the form of review for which Pt 7AA provides are in the end insufficient to warrant departure from the Brian Lawlor construction. Applying that construction, a fast track reviewable decision triggering the operation of the Part and forming the subject of the Authority's review is a decision made in fact to refuse to grant a protection visa to a fast track applicant, regardless of whether or not that decision is legally effective.

41    Section 473CA requires the Minister to refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. Section 473BB relevantly defines a fast track reviewable decision to be a fast track decision in relation to a fast track review applicant. The contention advanced by the appellant in the present case is based on the premise that by reason of the failure of the delegate to record the time and date on the written reasons accompanying the notification of the decision outcome, no “fast track reviewable decision” has been made, and accordingly the IAA had no power to make its decision. However, as the High Court records in Plaintiff M174, it is the decision made in fact to refuse to grant a protection visa to a fast track applicant that is the trigger for the operation of Part 7AA. That decision is made pursuant to s 65 of the Act. This trigger operates regardless of whether or not that decision is legally effective. In any event for the reasons stated in [37] – [39] above, no statutory omission of relevance arises insofar as there was no time or date set out on the written reasons of the delegate. Those reasons are not the “record of the decision” identified in s 67(2). If they were, the terms of s 67(5), which state that failure to comply with s 67(2) does not affect the validity of the decision would in any event deprive the appellant of success on this ground.

42    The views set out above are differently expressed to the reasons provided by the primary judge on the same subject. However, the result is the same. In my view ground 2 of the appeal must fail because the primary judge correctly held that the IAA had authority to review the delegate’s decision.

43    In ground 3 the appellant contends that as a result of the Minister’s failure to comply with s 67(2), the IAA could not determine whether any material provided to it by the Secretary under s 473CB(1)(c) was ‘new information’, and so was not in a position to consider the exercise of discretions within the parameters of s 473DD or s 473DE. For the reasons that I have set out in relation to ground 2, the asserted failure to comply with s 67(2) has not been established. Accordingly, ground 3 of the appeal must also be dismissed.

44    Ground 4 involves the contention by the appellant that the IAA erred in reasoning that because the human rights situation for Tamils had improved, there is not a real chance that the appellant would face harm from the Sri Lankan authorities for being a Tamil. In the particulars appended to this ground, the appellant first refers to country information that indicates that the conflict since the end of the civil war in 2012 has not ended for many Tamils and is still being perpetrated through unlawful abductions, detention and torture. Secondly, the particulars refer to other country information indicating that the potential for ongoing detention of even low-profile LTTE members or sympathisers remains.

45    This ground was not advanced before the primary judge, and leave is required before it may be considered on appeal. I commence my consideration of this ground with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the visa. As such, neither Court has the capacity to consider the factual merits of the IAA’s decision to refuse to grant the application. The jurisdiction of the FCCA is limited to considering only whether the IAA’s decision to refuse to grant the appellant the visa is lawful under the Act, that is, whether the decision of the IAA is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the IAA under s 24 of the Federal Court of Australia Act 1976 (Cth).

46    Ground 4 amounts to little more than a disagreement on the part of the appellant with the reasoning and factual conclusions reached by the IAA. The choice and assessment of country information is a matter for the IAA; NAHI at [13]. Country information was before the IAA that entitled it to make the finding that it did. In such circumstances I do not consider that it is expedient in the interests of justice to grant leave to the appellant to advance this ground; VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (Kiefel, Weinberg and Stone JJ) at [46]-[48].

47    In ground 5 the appellant appears to contend that the IAA failed to consider the possibility that Tamils who suffered human rights violations had no actual or even perceived links with the LTTE and failed to foreclose reasonable speculation about the chance that human rights violations were carried out on Tamils who did not have real or perceived links to the LTTE. However, at [29] of its decision the IAA refers to country information that a person of Tamil ethnicity would not warrant international protection. It then goes on to consider whether a person who had a past connection with the LTTE (real or perceived) has an enhanced danger of persecution. This was part of the evaluative process that the IAA was entitled to conduct. Having regard to the nature of the present hearing, to which I have referred above, this ground is without foundation. It was not raised before the primary judge and I would not grant leave for it to be raised on appeal.

48    Ground 6 does not advance the position any further and may be set to one side.

6.    DISPOSITION

49    The appeal must be dismissed with costs.

Associate:

Dated:    22 February 2019