FEDERAL COURT OF AUSTRALIA

BTT16 v Minister for Home Affairs [2019] FCA 251

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 20 March 2018 are set aside.

3.    In lieu thereof, the following orders are substituted:

(a)    A writ of certiorari, directed to the second respondent, quashing the decision of the second respondent made on 1 July 2016.

(b)    A writ of mandamus, directed to the second respondent, requiring it to determine according to law the application for review of the decision of the delegate of the first respondent made on 24 May 2016.

(c)    The first respondent is to pay the applicants’ costs of and incidental to the application for judicial review filed on 14 July 2016.

4.    The first respondent is to pay the appellants’ costs of and incidental to the appeal as assessed or agreed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    Three appellants, being a husband, wife and son, appeal a decision of the Federal Circuit Court dismissing their application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) which affirmed the decision of the delegate of the first respondent (the “Minister”) to refuse the grant of temporary protection visas. The husband is a Sri Lankan Tamil Hindu who has converted to Christianity. His family arrived illegally in Australia in 2012.

Background

2    The appellants sought protection visas in reliance upon s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”). Their claims of fear arising from their proposed return to Sri Lanka were summarised by the IAA at [20]-[22] of its decision as follows:

20.    The applicant’s claims to protection can be summarised as follows:

•    In 1958, 1977 and 1983, he and his family were caught up in communal violence in which Sinhalese mobs attacked Tamils throughout Sri Lanka. Their properties and businesses were destroyed and they were forced to relocate from Kandy to Eastern Province.

•    Tamils are denied jobs and educational opportunities based on their ethnicity.

•    During the war Tamils were persecuted as suspected LTTE supporters. In 1986 a group of the applicant’s friends were killed by the Sri Lankan Army (SLA). In 1990 the applicant was rounded up with 90 other Tamil men, detained and tortured.

•    During the war the applicant was required to pay regular amounts of money to the LTTE. The man who collected the money subsequently defected to the Karuna Group which split from the LTTE and provided intelligence information to the government about former LTTE members and supporters. The applicant claims that he is therefore known as a supporter of the LTTE.

•    In 2010 when he operated his jewellery shop in Batticaloa he was targeted for extortion and robbery, suggesting that this was carried out by government security forces and their armed paramilitary supporters because he was known as an LTTE supporter. He claimed that he was similarly subjected to extortion and the threat of harm when he opened a restaurant in Batticaloa in January 2012 and this forced him to leave Sir Lanka in August 2012.

•    In 2011 after he was forced to close his jewellery business he relocated to Kalmanai where women were subjected to attacks by “Grease men”. Because of the danger he and his family could not stay there.

•    The personal details of the applicants were revealed in the January 2014 [Department of Immigration and Border Protection] “data breach”. Since then, he has been told that the armed forces have been making inquiries of his family members as to his whereabouts.

•    Illegal departure/failed asylum seeker – the applicant claims that because he left Sri Lanka illegally he faces harm on return.

•    Conversion to Christianity – the applicant, formerly a Hindu, has been baptised as a Christian in Australia. Although he did not claim to fear harm on this basis the delegate dealt with an implied claim that he might face harm for reason of his religion.

21.    The second named applicant made her own claims to protection, stating that

•    She has been imputed with the profile of an LTTE supporter because of her marriage to the applicant; and because her first husband was detained in a roundup of Tamil men in 2004, detained and tortured.

•    As a Tamil, she has faced the threat of harm and sexual violence during various periods in Sri Lanka when she was been [sic] single, or living alone, although she has never actually been harmed.

•    She has been baptised as a Christian in Australia; as with the applicant, the delegate dealt with an implied claim that she might face harm on this basis.

•    She fears harm because of her illegal departure from Sri Lanka

•    She fears harm as a result of the “data breach”.

22.    The delegate considered the following claims that were explicitly made, or implied, in relation to the third named applicant

•    Because of his association with his step father, the applicant, and his biological father, and because he is approaching adolescence, he may be imputed as a supporter of the LTTE

•    He faces harm because of the data breach

•    He faces harm because he left Sri Lanka illegally

3    In amplification, and amongst other claims, the husband stated that when he ran a jewellery shop soldiers threatened to kill him when extorting him. In the husband’s statutory declaration made on 21 January 2014 (the “2014 Statutory Declaration”), he said:

If I tried to refuse to pay I would be threatened with being killed. On one occasion, when my wife and I had buried some of the jewellery from the shop to try to keep it safe, the armed men put a gun to my head and warned me that they would kill me unless I showed them where the jewellery was.

…

In December 2010 I was abducted by men driving a white van. My hands were tied behind my back and I was blindfolded. After being driven for about 20 minutes one of the men said I should be shot. Another man said I should be thrown out of the van. I feared for my life.

4    In the husband’s statutory declaration made on 11 August 2015 (the “2015 Statutory Declaration”), the following similar claims were made:

Early in 2010 I was attacked by soldiers (not in December 2010). I had closed the shop and returning home. I had taken the jewellery with me to bury the jewellery at home to keep them secure. On the way home I was attacked by soldiers. They pointed their guns at me. I was tied up and blindfolded and the jewellery taken. I was left in a nearby bush, still tied up. I was able to make my way to the road, and was helped by a stranger on a bicycle and then put on a bus.

In December 2010 I was abducted by men driving a white van. My hands were tied behind my back and I was blindfolded. After being driven for about 20 minutes one of the men said I should be shot. Another man said I should be thrown out of the van. I feared for my life. My hands were untied and then the men demanded money from me. I said I could not keep paying but the men let me out of the van and said they were letting me live so that they could get more payments from me.

5    The husband and wife also made claims that they were targeted by armed groups when they operated a hotel in Batticoloa in 2012. On one occasion, the husband claimed he had to flee and hide for three days. The evidence was that the hotel was owned by the husband and wife and that they had run it for about six months. In the 2014 Statutory Declaration, the husband claimed the following:

I moved my family to Batticoloa and in January 2012 I opened up [a] hotel. It was not long before I was being targeted by armed groups again. I believe they were linked to the government and were persecuting me to try to drive me out of the business and force me to leave Sri Lanka.

I was forced to go into hiding for three days but then the armed men came to the hotel about midnight and threatened to shoot my wife and child. I returned to the hotel and one man hit me in the face so hard I fell to the ground.

My family and I realised that we could not carry on living like that anymore. I feared for the safety of my wife and child. I feared that the armed men might rape or kill my wife and so I decided we should leave Sri Lanka.

6    In the 2015 Statutory Declaration, the husband made a further and similar claim about this incident as follows:

It was not long before I was being targeted by armed groups again. I believe they were linked to the government and were persecuting me to try to drive me out of business and force me to leave Sri Lanka.

I was beaten. I was forced to go into hiding for three days and then I came back from hiding. Armed men then came to the hotel early in the morning when we had started cooking, and threatened to shoot my wife and child. One man hit me in the face so hard I fell to the ground and passed out.

My family I realise we could not carry on living like that anymore. I feared for the safety of my wife and child. I fear that the armed men might rape or kill my wife and so I decided we should leave Sri Lanka.

The IAA

7    The IAA accepted that the husband had experienced harm because he is a Tamil, but was not satisfied, largely because of country information, that he was now or in the reasonably foreseeable future at risk of harm if returned to Sri Lanka. The learned primary judge referred to the following paragraphs of the IAA’s decision as representative of its reasoning and conclusions concerning the application of s 36(2)(a) of the Act:

86.    I accept that the applicant has experienced harm of various kinds throughout his life because he is a Tamil. I accept that he has witnessed harm done to members of his extended family and his community because of their ethnicity. Many of these events occurred before and during the civil war. I must look to the reasonably foreseeable future in assessing whether the applicant is owed protection.

87.    I do not accept that the applicant is at risk of harm, now or in the reasonably foreseeable future, as a Tamil. I do not consider that there is a real chance that he would be affected by communal violence, or security measures of the kind that were in place during the civil war which resulted in serious human rights abuses against Tamils because they were collectively under suspicion of involvement with the LTTE. While the Sri Lankan authorities continue to monitor the Tamil populations of the Northern and Eastern Provinces that were previously under the control of the LTTE, the applicant’s evidence does not suggest that he has been subjected to such monitoring, consistent with country information indicating that it is those Tamils with prior links to the LTTE or those who may be working to revive it, who may currently be at risk of harm. There is no suggestion that the applicant is such a person. He does not claim to have been involved with the LTTE in any way except that he paid obligatory taxes to the organisation during the war. Country information indicates that all Tamils living in LTTE controlled areas were required to do so, and do not now face serious harm because of this, as the authorities are not concerned about this level of support. I do not accept that the applicant has in the past, or would in the reasonably foreseeable future, face monitoring or other harm for this reason. I do not accept that he has, for this or any other reason, been imputed to be a supporter of the LTTE or to have any connection with the organisation that would be of concern to the authorities if he were to return to Sri Lanka. Even accepting that the person to whom he paid the money is now with a government aligned paramilitary group, and even if that person had informed the authorities that the applicant paid money to the LTTE, I do not accept that this would result in harm to the applicant because I find on the basis of the country information that the authorities are not concerned about involvement at this level. I do not accept that any difficulties the applicant faced post-war in the context of his business operations in Batticaloa or Vaalichchenai, were the result of any actual or imputed political opinion attributed to him either because he is Tamil or because he was known to have paid money to the LTTE during the war.

88.    I am not satisfied that there is a real chance that the second or third named applicants face harm in Sri Lanka because they are imputed to be supporters of the LTTE on their own account or because of their connection with the applicant or any other person.

89.    I accept that the applicant faced harassment and minor extortion from government security personnel and armed paramilitary groups when he operated his jewellery shop in Vaalichchenai and his restaurant in Batticaloa. The credible evidence does not suggest that this mistreatment reached the threshold for serious harm. I do not accept, on the evidence, that the applicant would be killed or otherwise harmed if he refused to accede to the demands for food, cash and cigarettes; the evidence does not support a finding that the financial consequences of having to provide food, cash and cigarettes would threaten the applicant’s capacity to earn a livelihood or to subsist. I accept that he was robbed in December 2010 after a brief abduction but I am not satisfied, on the evidence, that this was anything other than a criminal matter, notwithstanding evidence that paramilitary groups operating in the political sphere and with government connections are also engaged in criminal activity in the eastern province. Even accepting that actual or implied threats were made to the safety of the second or third named applicants, there is no credible information to suggest that they were, or would in the reasonably foreseeable future be at real risk of harm from these groups.

90.    I do not accept that the applicant (or the second or third named applicants) is at risk of future harm from grease men, given that there have been no reported attacks by grease men since September 2011.

91.    I do not accept that the applicants face a real chance of persecution because they left Sri Lanka illegally. I find that they would not be subject to penalties on return that constitute persecution, both because they do not involve serious harm and because they would be imposed under laws of general application. Because I find that none of the applicants have a profile as a person with real or suspected links to the LTTE I find that there is no risk that they would be subjected to unusual detention or mistreatment amounting to serious harm on return.

92.    I find that even if they were recognised as failed asylum seekers on return for any reason, including because of the DIBP data breach, they would not thereby be imputed to be LTTE supporters or opponents of the government or face a real chance of harm for any related reason.

93.    I do not accept that the applicants have been subjected to discrimination amounting to persecution in relation to employment or education, or any other matter, because they are Tamils, or that there is a real chance that they would be subjected to such discrimination in the reasonably foreseeable future.

8    With respect to the application of s 36(2)(aa) of the Act, the following paragraphs of the IAA’s decision were referred to by the learned primary judge:

95.    A criterion for a protection visa is that the applicant is a non citizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

Real risk of significant harm

96.    Under s.36(2A), a person will suffer ‘significant harm’ if:

•    the person will be arbitrarily deprived of his or her life

•    the death penalty will be carried out on the person

•    the person will be subjected to torture

•    the person will be subjected to cruel or inhuman treatment or punishment, or

•    the person will be subjected to degrading treatment or punishment.

97.    The applicants have not made specific claims to complementary protection separate from those put forward in relation to the refugees criteria. Based on the information they have provided, and the country information referred to above, I am also satisfied that there is not a real risk that they would face significant harm.

98.    There is no suggestion that the applicants face the death penalty for any reason.

99.    I do not accept that there is a real risk that the applicants would face being arbitrarily deprived of life or tortured for any reason connected with their ethnicity, their political opinion or a political opinion imputed to them, or their religion. Nor do I accept that there is a real risk that they would be subjected to cruel, inhuman or degrading treatment or punishment, intentionally inflicted for any of those reasons; or as a result of any discrimination they might suffer as Tamils. I do not accept that the second named applicant faces significant harm related to her gender.

100.    I have accepted that the applicant faced harassment and minor extortion from government security personnel and armed paramilitary groups when he operated his jewellery shop in Vaalichchenai and his restaurant in Batticaloa. I accept that he was robbed in December 2010 after a brief abduction and that he was threatened in 2012. I do not accept, on the evidence, that there is a real risk that the applicant would be killed, tortured or subjected to cruel, inhuman or degrading treatment or punishment, as defined, should such demands continue and if he refused to accede to the demands for food, cash and cigarettes. Even accepting that actual or implied threats were made to the safety of the second or third named applicants, there is no credible information to suggest that they were, or would in the reasonably foreseeable future be at real risk of significant harm from these groups.

101.    I do not accept that there is a real risk that the applicants face harm of any kind from grease men.

102.    As to their treatment under the criminal justice system, including as people who departed illegally and/or failed asylum seekers, I accept that they will be detained briefly at the airport for questioning, and security and character checks. They may be charged with an offence under the [Immigrants and Emigrants Act 1949 (Sri Lanka)] because they departed Sri Lanka illegally. They may be remanded in custody for a short period either at the airport or at a prison, while waiting to be brought before a magistrate who will most likely quickly grant bail. For reasons discussed above, I do not accept that there are any particular aspects of the applicants’ profiles that would result in their being detained for a longer period or subjected to interrogation that might give rise to significant harm. I do not accept that the process outlined above amounts to significant harm, or that the applicants would be exposed to significant harm during this process. Nor does the penalty likely to be imposed on the applicants, or the questioning or remand conditions they would most likely face, amount to any form of significant harm. I find that, to date, a custodial sentence has never been imposed on illegal returnees such as the applicants. I am not satisfied that there is a real risk that the applicants face a custodial sentence. I am not satisfied that there is a real risk that the applicants will face torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, including as a result of conditions they may face during a short period in custody. I accept that conditions in prison or detention may be poor, but the evidence does not suggest that the applicants face the death penalty or arbitrary deprivation of life. The definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act requires that any pain or suffering be intentionally inflicted on a person. Similarly, “degrading treatment or punishment” is defined to mean an act or omission that causes and is intended to cause extreme humiliation. I am not satisfied that any pain or suffering caused to the applicants by overcrowding and poor and insanitary conditions in prison or on remand would be intentionally inflicted, as required. Nor do I accept that overcrowding and poor conditions are intended to cause extreme humiliation.

Complementary protection: conclusion

103.    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm. The applicants do not meet s.36(2)(aa).

9    The following two paragraphs in the reasoning of the IAA were said by the appellants to disclose jurisdictional error, and should be set out in full. The first is at [56] which concerned the husband’s treatment in Sri Lanka during the civil war and is in the following terms:

Based on the applicant’s evidence, I accept that the SLA may have had a threatening presence outside his shop and may have referred to Tamils’ support for the LTTE during the war, and I accept that they may at times have demanded that the applicant pay them cash or give them things. On the applicant’s evidence, I am not satisfied that he was thereby subjected to extortion or harassment to a degree that amounts to persecution. The evidence does not suggest that he was subjected to an actual threat to life or liberty, or to significant harassment or physical ill treatment, or that his capacity to earn a livelihood was affected threatening his capacity to subsist or that he was subjected to economic hardship threatening his capacity to subsist.

10    The second paragraph in the IAA’s decision concerned the alleged incident when the husband fled the hotel that he operated. It is at [60] and is in the following terms:

The applicant claims that the incident which made him decide to leave occurred when because of the pressure he was under he went into hiding for three days (at the TPV interview he stated that he was in hiding for up to a week), returning when armed men went to the hotel and threatened his wife. He claims to have been beaten either before he went into hiding or when he returned to the hotel. He claims that soldiers beat him; the second named applicant said that it was CID and soldiers. The applicant’s evidence about this incident was vague and lacking in detail including as to who was responsible for the threats, or their motivation. Further, it seems implausible that if armed groups were harassing the applicant for money from the hotel business, and had he been beaten or felt under such pressure that he needed to go into hiding, he would leave his wife alone to operate the business.

The Federal Circuit Court

11    The appellants had no legal representation in the Federal Circuit Court. Their one ground of review was in the following terms:

1.    We request a jurisdictional review of the IAA decision as the [sic] all the available information was not considered, or misinterpreted and not used in determining the Applicants’ circumstances as a whole.

12    The learned primary judge rejected the application for review by reason of it being generalised and non-particularised. His Honour decided at [43]:

Here, the one ground that is articulated by the applicants is perhaps best described as vague. A general and vague application of this sort provides judicial justification for the dismissal of the proceeding.

13    The learned primary judge also decided that the IAA did not otherwise err in law in any other way. At [47], his Honour said:

… The applicants have failed to show that the IAA fell into jurisdictional error. The Court sees no legal error, and nothing that can be referred to as logical or irrational, on the part of the IAA in terms of its approach, analysis or ultimate conclusions. All findings were open to the IAA. They were reached on valid grounds. Nor can it be said that the IAA’s conduct of the case or its conclusions were unfair. Overall, the decision to affirm the delegate’s decision was perfectly sound. There is no evidence before this Court that the IAA failed to look at all of the evidence it had before it. Rather, it did so exhaustively. The Court also disagrees with the suggestion that a complete analysis was not provided. The IAA carefully considered the facts of the case, the legislation it was required to examine, the relevant country information and all of the evidence that it had provided to it. Its analysis was, overall, unimpeachable.

Appeal

14    On appeal to this court, the appellants were represented (for the first time) by Mr Glenister on a pro bono basis. The court is grateful to him for his assistance. The initial grounds of appeal (drafted prior to the retention of counsel) were in the following terms:

The Immigration Assessment Authority decision was affected by jurisdictional error in that the member failed to make a finding on the harm I had suffered and consequently misapplied the test for ‘serious harm’.

1.    In my statutory declaration setting out my claims that accompanied my application for the Temporary Protection visa on 2 June 2015, I explained that while running the restaurant in 2012, I was beaten by armed groups to the point of losing consciousness and the men threatened to shoot my wife and child. We decided to flee Sri Lanka following these attacks.

2.    The delegate of the Department of Immigration and Border Protection accepted this evidence, and that I had been subject to beatings, kidnap and extortion by the Sri Lankan authorities and groups associated with the Sri Lankan authorities.

3.    I fear returning to Sri Lanka based on being persecuted as Tamil businessman, and the delegate accepted that this was ‘a particular social group’ for the purpose of the protection assessment.

4.    The Immigration Assessment authority raised credibility concerns regarding the incidents in 2012 when I was beaten and my family was threatened to be killed. However, the member does not make any finding that these events did not occur. This is supported by the fact that the member accepted that I was ‘possibly assaulted’ in 2012.

5.    Despite this, the member found that these incidents did not amount to serious harm.

(Errors in the original.)

15    At the hearing, over the objection from Counsel for the Minister, Mr Hannan, I gave the appellants leave to rely upon a new Notice of Appeal which contained the following two grounds (in that respect, as Mr Hannan pointed out, the decision to decline to adjourn the hearing below (first ground) was interlocutory in nature; but in my view, that decision was just attended with sufficient doubt and there was no doubt that injustice would have resulted, supposing the decision to be wrong, if I had refused leave):

1.    The learned Circuit Court Judge denied the Appellants procedural fairness by failing to give proper, genuine and realistic consideration to the Appellants’ application for an adjournment.

Particulars

i.    There are no reasons in the published reasons of the Circuit Court for the refusal of the adjournment.

ii.    The transcript of the proceedings in the Circuit Court reveal that there was no exploration of the merits of an adjournment in this particular case.

2.    The Immigration Assessment Authority (IAA) constructively failed to exercise jurisdiction by illogically finding that the extortion suffered by the Appellants at the hands of armed groups in Sri Lanka between 2010 and 2012 did not amount to serious harm for the purposes of s.5J(5) of the Migration Act 1958 (Cth).

Particulars

i.    The IAA found in its reasons that the Appellants had been subject to extortion by armed groups in Sri Lanka between 2010 and 2012 ([38], [53], [56], [57], [59], [63]).

ii.    The IAA found that the extortion was not to a degree that amounts to serious harm ([63]).

iii.    The IAA later referred to the extortion as “minor” ([100]).

16    I also subsequently granted leave for the following further third ground of appeal to be relied upon in order to address two points that had emerged during the hearing of the appeal:

3.    The IAA made a jurisdictional error by making a finding or findings for which there was no evidence. Further or in the alternative, the IAA made a jurisdictional error by overlooking relevant evidence.

Particulars

i.    The finding at [56] of the IAA’s reasons, that ‘the evidence does not suggest that he (the First Appellant) was subjected to an actual threat to life or liberty’ is contrary to the evidence at [5.11] of the First Appellant’s statutory declaration (AB 80) that he was subject to death threats. That evidence was not rejected by the IAA.

ii.    The finding at [60] of the IAA’s reasons, that ‘he (the First Appellant) would leave his wife alone to operate the business’, does not have any basis in the evidence.

Ground One

17    The first ground of appeal concerned the decision of the learned primary judge to decline to adjourn the hearing below. That decision is reflected in the orders of the court made below as follows:

The first applicant’s oral application at the hearing for an adjournment of the originating application is dismissed.

18    The transcript of the hearing below in the Federal Circuit Court was in evidence before me and it showed that the application for adjournment was first made following the delivery by his Honour of an ex tempore judgment. The relevant part of the transcript is set out below:

MR MACLIVER: Your Honour, I will hand this to your Honour’s associate, but it is a letter from the first applicant dated yesterday. It’s addressed to the High Court and it says:

With great regret, I would like to update that, when I visited my lawyer today in regards to my case update, then I came to know that he had withdrawn, which I was not aware. This is due to miscommunication. I kindly request for more time to arrange for another lawyer to appeal my case. Sorry for inconvenient cause. Thank you. Yours sincerely –

and the signature of the first applicant.

HIS HONOUR: All right. Well, as I said – well, Mr Macliver, how do you want to deal with that?

MR MACLIVER: Your Honour, my instructions are that, if an adjournment is sought, that that application is opposed.

HIS HONOUR: I’m not entirely sure that an adjournment has been sought. I’ve already made my decision.

MR MACLIVER: Yes.

HIS HONOUR: That is something that should have been raised earlier.

MR MACLIVER: Yes.

HIS HONOUR: I’m assuming that what is being explained – and correct me if I’m wrong – is that, for the purposes of the appeal which he has just discussed, he doesn’t currently have legal representation, but that’s nothing that I can deal with at this stage.

MR MACLIVER: No. No.

HIS HONOUR: Can you just clarify.

THE INTERPRETER: I was not aware of the process, your Honour.

HIS HONOUR: All right. Well, I’m afraid I can’t assist you with that. This case has been on track for a significant period of time and, while regrettable, and unfortunately not uncommon, in terms of legal representation the court is of the view that the applicants have had ample opportunity to both consult a legal advocate of some sort, get their assistance, and ultimately make a determination about how they wish to proceed legally.

THE INTERPRETER: Yes, your Honour.

HIS HONOUR: Thank you. I note that that letter was brought to the court’s attention very late in the piece indeed, after a judgment had been handed down, but I should say for the record that the court’s decision would have been the same had that letter been advanced at the beginning of this hearing.

THE INTERPRETER: Yes, your Honour.

HIS HONOUR: And, on the basis that the letter dated 19 March 2018 does constitute a formal request for an adjournment of this hearing, that request is denied.

19    Mr Hannan, very properly in my view, conceded that it remained open to the learned primary judge to grant the adjournment application, even though his Honour had already given judgment. That is because the court’s function is not exhausted until its final orders have been drawn up, passed and entered: Jansen v Salisbury Wrought Iron Works Pty Ltd [2007] SASC 73 and r 16.05(1) of the Federal Circuit Court Rules 2001 (Cth). That had yet to occur here. He otherwise submitted that the decision to decline to grant an adjournment, involving as it did the exercise of judicial discretion, was not infected with any error of law in the sense required by House v The King (1936) 55 CLR 499. He emphasised that an appellate court would rarely disturb a decision made by an inferior to adjourn or not adjourn proceedings.

20    The appellants’ complaint was that the learned primary judge had not given “proper, genuine and realistic consideration” to the application made before his Honour. This was said to be evident by the lack of reasons appearing in the judgment and the contention that there was no sufficient exploration by the judge below of the merits of the application. It was submitted that the learned primary judge should have made inquiries of the appellants as to, for example, the length of the adjournment required or whether they had sufficient resources to obtain legal representation.

21    I respectfully disagree with that submission. Recently, the Full Court of this Court expressed the view that recourse to the language of “proper, genuine and realistic consideration” should be avoided, and expressed the applicable test as follows:

What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put: compare Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22] per Perram J. Additional adjectives do not assist that analysis and indeed tend to distract from it by being “apt to encourage a slide into impermissible merit review”: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] citing Swift v SAS Trustee Corporation [2010] NSWCA 182; 6 ASTLR 339 at [45]. Because the Court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. Neither does the Court ignore such a statement.

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [45] per Rares and Robertson JJ.

22    In my view, the foregoing reasoning should apply equally to a consideration of the appellants’ submission here in the context of ascertaining whether the learned primary judge erred in the sense required by House v The King. The question for determination is thus whether the learned primary judge, as a matter of substance, had regard to the application made for an adjournment. A consideration of the contents of the application necessarily bears upon the answer to that question. The letter seeking more time asserted that the need for an adjournment arose out of a “miscommunication” with the appellants’ former lawyer. The miscommunication was never explained. Nor did the appellants explain why they had only visited their lawyer the day before the hearing. Nor did the letter, or the appellants, in any way submit that a further or additional hearing was needed for some reason. In substance, there was nothing to adjourn, the hearing having been finished and judgment delivered. In my view, the statement of the learned primary judge that the appellants had had “ample opportunity” to consult a legal advocate of some sort and his Honour’s observation that the application had been made “very late” in the process, following the giving of judgment, demonstrated that his Honour did give, as a matter of substance, adequate consideration of their application. In my view, what his Honour said in the transcript set out above was an appropriate and sufficient disclosure of his reasons for concluding that he should refuse the application for adjournment. As Mr Hannan correctly pointed out, the giving of reasons does not always need to be done formally, and an oral explanation on transcript can sometimes be sufficient: Keating v Keating [2017] FamCAFC 86 at [32]. That was the case here.

23    The first ground of appeal is thereby rejected.

Ground Two

24    The second ground of appeal pleaded that the characterisation by the IAA of the extortion suffered by the appellants as not amounting to “serious harm” and was “minor”, was illogical. The appellants relied upon the following test of legal unreasonableness found in the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135]:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

25    The appellants’ also relied upon the definition of “serious harm” in s 5J(5) of the Act and emphasised that it included “significant physical harassment”. They contended that the IAA had accepted that the husband had been subject to harassment and extortion by armed forces and had been abducted and robbed. Extortion, it was said, was an inherently serious crime: there could not be, the appellants submitted, such a thing as “minor” extortion.

26    It is unnecessary for me to reach a final conclusion concerning this ground of appeal. That is because, for the reasons explained below, the IAA’s characterisation of the “level” of extortion was bound up with an error made by it in considering the material before it.

Ground Three

27    The third ground of appeal was a contention that the IAA made findings of fact that were either not supported by any evidence or which overlooked material evidence. In that respect, it is not in dispute that jurisdictional error may exist if:

(a)    the IAA makes a finding of fact which is not supported by a “skerrick” of evidence: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575]; cf Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; or

(b)    The IAA does not take into account critically material or dispositive evidence: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.

28    Here, the appellants submitted that the following findings, which they contended were material, were made by the IAA which either overlooked materially important evidence or were made without the support of a skerrick of evidence:

(a)    the proposition that the evidence did not “suggest” that the husband had been “subjected to an actual threat to life or liberty” when he owned a jewellery store (at [56] of the reasons); and

(b)    the proposition that it seemed “implausible” that the husband would “leave his wife alone to operate” the hotel whilst he went into hiding for three days (at [60] of the reasons).

29    As to the first finding, based it would appear from a consideration of answers given by the husband at his temporary protection visa (“TPV”) interview, it was submitted that it overlooked the claims made in the husband’s statutory declarations that armed men had threatened to kill him, had threatened him with a gun, and threatened to shoot him. Those claims are set out above.

30    The Minister submitted that, read in context, the IAA had made a factual finding that was open to it to make, which rejected the contention that armed men had threatened to kill the husband. The finding was based upon the IAA examining the evidence from the TPV interview. In that respect the Minister emphasised the statement in [56] commencing with the phrase “I am not satisfied …” as well as the following finding made at [89]:

The credible evidence does not suggest that this mistreatment reached the threshold for serious harm. I do not accept, on the evidence, that the applicant would be killed or otherwise harmed if he refused to accede to the demands for food, cash and cigarettes; …

The Minister in particular urged me not to read the impugned finding as an observation made about the type of evidence which was before the IAA. Rather, it should be read as part of an overall rejection of the husband’s evidence.

31    On balance, I respectfully disagree with the Minister’s submission. The natural meaning conveyed by the impugned finding at [56] is that it was an observation about the evidence which was before the IAA. That observation was that the “evidence” did not “suggest” that the husband had been threatened with his life. That observation is incorrect. In both the 2014 and 2015 Statutory Declarations, the husband claimed that armed men had threatened to kill him. I am, in that respect, and whether reading the finding in context or in isolation, unable to read that sentence as not constituting a comment on the nature of the evidence before the IAA.

32    In my view, this mistake was not one made within jurisdiction. The quality or nature of the threats made to the husband was an essential or critical feature of the claims made by the appellants. The husband’s claims that armed men had threatened to kill him and shoot him, if true, might have been inconsistent with the IAA’s characterisation of the “level of extortion” (at [59]) he faced, which it characterised as only “minor”. Moreover, the IAA did not adjudicate, as it should have, on the veracity of those threats. In SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452, the Full Court of this Court decided that the Administrative Appeals Tribunal erred when it failed to adjudicate on the existence of an important integer of a claim made in pursuit of the grant of a protection visa. At [52] (per Nicholas, Robertson and Griffiths JJ), it said:

… in order to discharge its statutory review function, the Tribunal was required to consider the appellant’s claims and their integers. In the circumstances here, this obliged the Tribunal to determine whether or not it accepted that the threatening telephone calls had been made and, if it found that they had, to proceed to determine whether it accepted the appellant’s claims that he was threatened in those calls that he would “disappear from the earth” and that such threats were made because of his association with the General. If the Tribunal made findings of fact which were favourable to the appellant on these matters, they would be material in that they could indicate that, contrary to the Tribunal’s ultimate finding, the appellant remained a person of interest in mid-2011 because of his association with the General. If that fact was accepted, it indicated that the appellant was a person of interest well after he ceased reporting to the police the previous year, contrary to the Tribunal’s finding.

33    Similarly here, if the IAA had accepted that the husband had been threatened with his life, it might not have characterised the extortion threats as “minor”. It might have reconsidered the “level” of extortion the husband faced, and then have weighed that evidence against the country information before it, as well as the answers given by the husband in the TPV interview. In my view, the IAA overlooked the husband’s evidence contained in his statutory declarations on this critical issue, or failed to make findings about it. Either way, its failure constituted a jurisdictional error of law.

34    In relation to the finding at [60], the appellants submitted that there was no evidence that the wife had been left alone to run the hotel whilst the husband went into hiding for three days. No claim had been made that this had occurred in any of the material before the IAA.

35    The Minister submitted that the impugned finding should again be read in context. It was one of a number of grounds supporting a rejection of the husband’s claims about this incident. The other grounds included the finding that the claim was “vague and lacking in detail”. Emphasising the word “further” in the impugned finding, it was submitted that where an adverse credibility finding is sufficiently supported by independent considerations, any single error in respect of the consideration of credit does not constitute jurisdictional error: AIC15 v Minister for Immigration and Border Protection [2018] FCA 774 at [13] per Bromberg J; BGV15 v Minister for Home Affairs [2018] FCA 1753 at [16] per Derrington J; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [64]-[67] per Wigney J.

36    A possible difficulty with the Minister’s submission is that the IAA does not appear to have expressly rejected or accepted the husband’s claims about this incident. At [62], it said:

Even accepting that the applicant faced some difficulties operating the Star Hotel, I am not satisfied that these amounted to serious harm.

37    At [63], it said:

Accepting that the applicant was … possibly assaulted in 2012 …

38    Once again, and with respect, the IAA appears to have failed to adjudicate finally and fully on the very incident which ultimately, according to the appellants, caused them to leave Sri Lanka. The phrase “some difficulties” is not apt to stand as an adjudication concerning the veracity of the serious claims made about the incident at the hotel. Nor is it sufficient to characterise the claimed assault as being merely possible. Once again, the IAA needed to reject or accept those claims in order then to test whether, when considered with the country information and the evidence contained in the TPV interview, there was a real chance that the appellants would suffer serious harm if returned to Sri Lanka.

39    I am also otherwise satisfied that there was not a skerrick of evidence to support the finding that the wife was left alone to run the hotel. Nor, do I think there was sufficient material before the IAA to justify an inference to that effect. That is because, amongst other things, it did not make a positive finding about whether the incident took place. In that respect, the principle upon which the Minister relied concerning findings of credit, is not engaged here precisely because one cannot be confident that the IAA rejected the husband’s credibility.

40    I also cannot be sufficiently confident that the IAA’s treatment of this issue is in any event an immaterial matter. Once again, the phrase “some difficulties” does not permit me to identify which difficulties were at [62] accepted as having occurred, but which nonetheless made no difference to the IAA’s ultimate finding that this did not amount to “serious harm”. If the startling claims made by the husband that armed men threatened to shoot his wife and child, that he was forced to go into hiding, and that he was hit so hard he fell to the ground and passed out, had been accepted as true by the IAA that might have altered its consideration of the risk of serious harm.

41    It follows that for these reasons the appeal should be allowed with costs.

Associate:

Dated:    28 February 2019