FEDERAL COURT OF AUSTRALIA

DXM16 v Minister for Immigration and Border Protection [2019] FCA 733

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

(revised from transcript)

BEACH J:

1    The appellant appeals from a decision of a judge of the Federal Circuit Court dismissing his application for judicial review of a decision of the Immigration Assessment Authority. The Authority affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Safe Haven Enterprise visa (the visa).

2    Before getting into the detail of the appeal, there are two preliminary matters that I should make mention of.

3    The first matter is that this morning the appellant provided a letter addressed to me, together with various attachments that seem to have been downloaded from the internet referring to the current political and other circumstances in Sri Lanka. The appellant sought to have this new material taken into account on the hearing of the appeal. I read that material but explained to the appellant that given the limited nature of my role on the appeal, the matters in his letter and the attachments were not directly relevant to the matters that I needed to decide.

4    The second matter is that after I invited the Minister’s counsel to go through the various grounds of appeal and after I invited the appellant to speak to his grounds of appeal, the appellant applied for an adjournment on the basis of some prospect that he might be able to obtain legal assistance. I heard submissions from the appellant in support of that application, but declined to grant the adjournment on the basis, first, that the appellant had had sufficient opportunity to get legal representation given that the appeal had been listed for some time, second, I did not consider the prospects of him getting legal representation given his circumstances to be very likely, and third, I did not consider that it was likely that legal representation was going to be of any real assistance in further clarifying the legal issues that I needed to deal with. Accordingly, for those reasons I refused his adjournment application.

5    Let me now turn to the merits of his appeal, and go through them in some detail. By way of background, I note the following matters.

6    The appellant is a citizen of Sri Lanka, who was born in 1990. He first arrived in Australia in August 2012 as an unauthorised maritime arrival. It is not necessary to detail what occurred between 2012 and 2015. On or about 30 November 2015, he applied for the visa, and in support of his application for the visa he asserted the following:

(a)    The appellant grew up in North Sri Lanka where the Liberation Tigers of Tamil Eelam (LTTE) were pressuring his family to have him join them. As the war affected their village, the appellant and his family moved to camps run by the Sri Lankan army for Tamils.

(b)    After two weeks in the camp the appellant was taken away by the army for what has been described as “rehabilitation”. The appellant was interrogated and physically assaulted. After one year, the appellant returned to the welfare camp with his mother.

(c)    The appellant and his family were released from the camp, but their village had been destroyed by the war, and the army apparently continued to harass them.

(d)    The appellant then moved to Africa, and thereby missed his mandatory registration with the army. The Criminal Investigations Department (CID) came searching for him. After the appellant had returned to Sri Lanka, the CID spotted him and took him away to an army camp and tortured him.

(e)    The appellant fears harm from the army and the CID if he returns to Sri Lanka and also he apprehends a fear based upon the fact that he had left Sri Lanka illegally, which could lead to him being imputed as being involved with the LTTE.

7    On 16 August 2016, a delegate of the Minister refused to grant the appellant the visa. The delegate’s decision was then referred to and reviewed by the Authority. The appellant’s migration agent provided a submission to the Authority in support of the appellant’s case. On 22 November 2016, the Authority affirmed the delegate’s decision.

8    The Authority had regard to the material referred to it by the Secretary (s 473CB of the Migration Act 1958 (Cth) (the Act)). The Authority also had regard to the appellant’s submission insofar as it contained arguments and material responding to the delegate’s decision. But the Authority was not satisfied that it could consider some interviews and speeches for which the appellant had provided YouTube hyperlinks. The Authority was not satisfied that either of the limbs of s 473DD(b) had been satisfied in relation to interviews and speeches for which the appellant had provided YouTube hyperlinks. Further, the Authority observed that the links did not work and that no explanation had been provided as to why the interviews and speeches could not have been provided to the delegate prior to her decision, or how they amounted to credible personal information. Accordingly, as neither of the relevant conditions in s 473DD(b) had been satisfied, the Authority did not take that material into consideration.

9    Now the Authority accepted that the appellant was of Tamil ethnicity and of Hindu faith. It also accepted the appellant’s claims as to the events he experienced during the civil war and its aftermath, including his avoidance of LTTE recruitment, his family’s detention in the Kodikamam army camp and the appellant’s own detention in the Tellipalai rehabilitation centre. The Authority further accepted that the appellant was in that centre between April 2009 and January 2010, because he was a young Tamil who had arrived at the army camp from an LTTE controlled area and also accepted that the appellant was interrogated and physically harmed at this time. It was also accepted by the Authority that the appellant had a passport issued to him whilst he was in the rehabilitation centre with the assistance of an army commander, but the Authority considered that the fact that the authorities helped the appellant apply for, and receive, a passport, indicated to the Authority that their suspicions about the appellant being a possible LTTE threat had decreased.

10    The Authority accepted that the appellant was released from rehabilitation in January 2010, but was concerned by inconsistencies in his claims as to how often he had to report to the authorities. The Authority considered that the authorities’ interest in the appellant decreased whilst he was in rehabilitation, but did accept that he was subject to some post-release reporting requirements. The Authority did not accept that the appellant was subject to a strict reporting regime when he departed Sri Lanka for Africa or that he was of adverse interest to the authorities at this time. Further, the Authority accepted the appellant’s claim that he had been questioned at the airport on his return from Africa, but did not accept that he had been hit or detained overnight. The Authority also did not accept the appellant’s claim that he had been required to sign in by the CID after his return from Africa. The Authority concluded that although the appellant had been detained in a rehabilitation camp in 2009 to 2010, he was not of adverse interest when he departed for Africa, was not detained on his return and was not otherwise of adverse interest to the authorities after his January 2010 release. The Authority also did not accept that the authorities had looked for the appellant after his departure from Sri Lanka, for any reason.

11    The Authority was not satisfied that the appellant faced a real chance of harm now or in the reasonably foreseeable future on account of his race and/or origin. The Authority was not satisfied that the appellant was of adverse interest to the authorities on his departure from Sri Lanka and found that there was not a real chance that he would face persecution on the basis of any imputed LTTE support or link. The Authority acknowledged that Tamils faced a “moderate level” of societal discrimination, but observed that there had been “significant positive developments” and that country information before the Authority did not indicate that there was discrimination or harassment at a level amounting to serious harm.

12    Now the Authority accepted that the appellant would, on return to Sri Lanka, be identified as a failed asylum seeker who had departed illegally. But it observed that the country information did not suggest that failed asylum seekers were imputed as having committed a crime (other than illegal departure), and found that the appellant would not be imputed as an LTTE member or supporter for this reason. The Authority accepted that the appellant may be charged under the Immigrants and Emigrants Act (Sri Lanka). But country information before the Authority did not indicate that returnees were processed in any discriminatory manner, and the Authority found that any brief period of detention faced by the appellant upon his return would not amount to serious harm. The Authority further found that the process leading to charge, conviction and punishment (including fines) for breach of the I&E Act was the result of a law of general application, and did not amount to persecution.

13    In summary, the Authority was not satisfied that the appellant’s circumstances, considered individually or cumulatively, gave rise to a well-founded fear of persecution. Accordingly, the appellant did not satisfy section 36(2)(a) of the Act.

14    Further, in relation to the complementary protection criterion, the Authority did not accept that discrimination or harassment against Tamils amounted to significant harm and was also not satisfied that the appellant faced a real risk of significant harm on account of his race, gender or origins. The Authority was also not satisfied that the appellant would suffer significant harm on account of being a failed asylum seeker or as a result of being processed under the said Sri Lankan legislation. Accordingly, the Authority did not accept that the appellant satisfied s 36(2)(aa) of the Act.

15    Accordingly, the Authority affirmed the decision of the delegate.

16    The appellant sought judicial review of the Authority’s decision before the primary judge who on 12 December 2018 dismissed that application. It is unnecessary at this point to detail his reasons.

17    The appellant has now appealed this dismissal. His notice of appeal raises four grounds, which grounds had also been raised before the primary judge. Putting to one side drafting infelicities, they appear to assert that his Honour erred by not finding jurisdictional error in the Authority’s decision for the reasons stated in each ground.

18    It is appropriate to consider each ground in turn.

Ground 1

19    It is said that the primary judge erred in not finding that the decision of the Authority relating to the appellant was affected by jurisdictional error in that it failed to consider relevant considerations of the appellant’s claims, or integers of claims, or information required by the Act to be considered. It is said that the Authority did not consider information given in the form of citations of links to internet material because it had said “there are no dates indicated in the submission and the links do not work”. It is said that the Authority failed to give an opportunity to the appellant or his representative to provide further information regarding the links to interviews and speeches provided by the appellant. In addition, it is said that the Authority failed to give an opportunity to the appellant or his representative to provide alternate copies of the interviews and speeches relied upon by the appellant to establish his case. It is said that if the Authority had difficulty in relation to the links, no explanation had been sought from the appellant to clarify this vital information provided by the appellant. Further, on a separate aspect, it is said that the Authority did not consider and determine the claim of the appellant to fear harm as a result of the process of “singhalisation”.

20    I would reject this ground. Let me deal with the internet materials first, and then I will deal with the “singhalisation” point.

21    In his submission to the Authority the appellant included references to sources of new information including four hyperlinks to YouTube. These links were said to contain speeches and interviews with the Hon CV Vigneswaran “relating to the Tamil youth problems and discrimination by the Sri Lankan Government”. The Authority referred to this submission in its reasons and also referred to the YouTube hyperlinks. It observed that whilst the hyperlinks were said to be “recent uploads”, they were undated and did not work. The Authority further observed that no explanation had been offered as to why these interviews or speeches had not been provided prior to the delegate’s decision or how they amounted to credible personal information. The Authority was not satisfied of the matters it was required to consider under s 473DD(b) of the Act and accordingly did not consider that material.

22    In my view, there was nothing erroneous in the Authority not inviting the appellant to provide further information regarding such speeches or videos or to provide them by some other means. The material was new information. Accordingly, the Authority was precluded from considering it unless satisfied of the matters in s 473DD(a) and (b). But the appellant’s submission did not indicate how the material would arguably come within s 473DD(b) of the Act such that the Authority could consider it. Moreover, no explanation was given as to why the interviews and speeches could not have been given to the delegate before her decision or why the speeches and interviews comprised credible personal information. Further, the precise relevance or significance of the material to the appellant’s case was not clearly explained, and the appellant also did not identify any matter in his submissions which might give rise to “exceptional circumstances” for the purposes of s 473DD(a).

23    Moreover, no unreasonableness has been shown in the Authority not inviting the appellant to provide the interviews and speeches by some other means. Its approach was not unintelligible or without justification, and was within its area of decisional freedom. No error by the primary judge or the Authority has been shown.

24    Let me deal with the other aspect to this ground. It is said that the Authority failed to consider a claim regarding “singhalisation”. But no such failure is shown. As the primary judge said in his reasons, the concept of “singhalisation” is a concept or process of discrimination against Tamils. But the Authority dealt with discrimination against Tamils and found that whilst country information suggested a moderate level of societal discrimination, that discrimination or harassment did not amount to serious harm. The Authority also did not accept that the appellant faced a real chance of harm on account of his race or origin. In my view, it was not necessary for the Authority to specifically use the label “singhalisation” in order to respond to the appellant’s submissions. It is clear that the Authority’s reasons dealt with the underlying concept of discrimination against Tamils and also dealt with any harm that might arise on account of the appellant’s Tamil ethnicity and/or its origins. No error has been shown by the Authority or the primary judge.

Ground 2

25    It is said that the primary judge was in error for not finding that the Authority fell into jurisdictional error in that it denied procedural fairness to the appellant because it made its decision without giving the appellant and his representatives the time that they requested so that they could obtain documents from the Minister’s department under the Freedom of Information Act 1982 (Cth); unreasonableness was also asserted.

26    But in my view the primary judge correctly rejected such an assertion.

27    This ground is advanced as a denial of procedural fairness. But Part 7AA of the Act modifies, by way of restriction, the common law principles of procedural fairness. Further, s 473DA of the Act exhaustively states the requirements of the natural justice hearing rule. The appellant did not point to any provision of Part 7AA breached by the Authority, and none is apparent.

28    Further, it is difficult to see how there was anything legally unreasonable in the Authority not waiting for the appellant to pursue a Freedom of Information (FOI) request. As Mr Nicholas Swan, counsel for the Minister submitted, an assessment of legal unreasonableness must be made in the context of the relevant statutory scheme. Part 7AA of the Act, inter alia, expressly permits the Authority to make a decision at any time after the matter has been referred (s 473DB(2)). Further, Part 7AA has expedition and efficiency as part of its objectives (see also s 473FA(1)). It also imposes no duty on the Authority to accept new information (s 473DC(2)). Moreover, the appellant’s submission to the Authority contained little, if any, indication of any estimated timeframe for the FOI request to be processed and did not identify any particular documents being sought or any expectation that the documents obtained would address some particular issue relevant to the Authority’s decision (as the primary judge found). In such circumstances I cannot see how it was unreasonable for the Authority to not wait for some unspecified period for the processing of the FOI request. Any reasonable Authority could have taken the same approach and it was in my view within the Authority’s area of decisional freedom to make the decision that it did.

Ground 3

29    It is said that the Authority fell into jurisdictional error in that it was “unreasonable or acted without logically probative evidence” and that the primary judge was in error for not so finding.

30    It is said that the Authority had no logically probative evidence from which it could conclude that the appellant would have no real chance of suffering serious harm or no real chance of suffering significant harm during the period after his future return to Sri Lanka whilst the authorities investigated his circumstances, and even if he was not ultimately regarded as being of interest as an LTTE member, or supporter or associate. It is said that this finding was also unreasonable given that the Authority had accepted his evidence of him having “faced interrogations and physical harm during his time in both camps” even though it concluded that the authorities’ “suspicions about the applicant being a possible LTTE threat had decreased during the period he was in detention.”

31    It is also said that the Authority was unreasonable in not accepting that the appellant had been hit or suffered serious harm when he was detained overnight on his return from Africa in 2012 given its finding that they treated him with some suspicion.

32    In my view, there is no illogicality or irrationality established in the fact finding approach taken by the Authority and the secondary conclusions drawn therefrom. I would note here that the appellant has also used the concept of unreasonableness but, for the moment, it is convenient to refer to the assertion of illogicality or irrationality. Let me make some general points.

33    First, the use of expressions such as “illogicality” or “irrationality” may be no more than to strongly emphasise disagreement with someone else’s process of reasoning on an issue of fact (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J). But that does not, in and of itself, establish jurisdictional error.

34    Second, and relatedly, the use of such expressions may be little more than a contrivance to shoehorn arguments about the merits of the Authority’s conclusion into the category of jurisdictional error, but that is to descend into impermissible merits review.

35    Third, differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said at [131]:

The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

36    Moreover, at [135] their Honours continued:

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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.

37    Fourth, the weight that the Authority accorded to each piece of evidence was a matter for it to determine in the light of the evidence and submissions before it. Questions of weight, per se, are not amenable to judicial review (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Kiefel and Downes JJ agreeing); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J).

38    Fifth, some probative material or other logical basis for a fact finding by the Authority was sufficient. The Authority was not obliged to uncritically accept evidence or a submission made by the appellant. Indeed, a finding on credibility is the function of a primary decision-maker par excellence.

39    Let me now turn to the appellant’s specific complaints.

40    The first aspect of the appellant’s complaint is that the Authority’s conclusion that the appellant had no real chance of suffering harm after returning to Sri Lanka (and whilst the authorities investigated him) was unreasonable or illogical, because the Authority had accepted that he had previously faced interrogation and physical harm.

41    But in my view, no unreasonableness or illogicality is shown. The Authority found that the appellant was not and had never been a member of the LTTE. It accepted that he had from April 2009 to January 2010 been detained in a rehabilitation centre. But it considered that the fact that the authorities helped him apply for, and obtain, a passport indicated that their suspicions about the appellant being a possible LTTE threat had decreased. Further, the Authority was not satisfied that the appellant was subject to a strict reporting regime when he departed Sri Lanka for Africa, or that he was of adverse interest to the authorities, at that time. It was also not satisfied that the appellant had been detained or was of adverse interest to the authorities on his return from Africa or when he departed Sri Lanka for Australia. Furthermore, the Authority, having considered country information before it, was satisfied that the situation in Sri Lanka, especially for Tamils, had considerably improved. All of these matters provided a logical and rational basis for the Authority’s conclusion that the appellant did not face a well-founded fear of persecution on return to Sri Lanka. Moreover any rational and reasonable Authority could have reached the same conclusions on the evidence. The primary judge was correct to conclude that the Authority’s conclusions that I have just referred to were open to it to make.

42    The second aspect of the appellant’s complaint is that it was unreasonable or illogical for the Authority not to have accepted that the appellant was hit or sustained serious harm on return from Africa in 2012. But in my view no error is shown. The Authority gave a rational and logical explanation for not accepting that claim. It seems to me that the appellant’s allegation of unreasonableness or illogicality is little more than an expression of his disagreement with the Authority’s conclusion, but that does not establish jurisdictional error.

43    For completeness, my above discussion concerning unreasonableness is in the context of fact finding rather than in the context of an unreasonable exercise of a discretionary power. In that fact finding context it is little more than a re-expression of grounds asserting illogicality or a lack of probative evidence.

Ground 4

44    It is said that the Authority fell into jurisdictional error in that it erred in interpreting or applying the law. It is said that the Authority’s findings that the appellant would have no real chance of suffering serious harm or no real chance of suffering significant harm during the period after his future return to Sri Lanka, and its non-acceptance of the appellant having been hit or having suffered serious harm when he was detained overnight on his return from Africa in 2012, in light of its finding that they treated him with some suspicion, indicate that the Authority was not correctly interpreting or applying the “real chance” test of serious harm and “real risk” test of significant harm. But I disagree. There is nothing to suggest that the Authority had misunderstood or misapplied the “real chance” or “real risk” test. Its findings were reasonably open to it, and nothing in its reasons suggests to me that it misunderstood or misapplied the relevant test or the underlying concepts. Moreover, the appellant did not identify any particular reason why or how such a misunderstanding could be found from the Authority’s reasons. Again, this ground appears in substance to seek to impugn the merits of the Authority’s findings. Accordingly, I would dismiss this ground as well.

45    For all of the above reasons, none of the appellant’s grounds have been made out. Accordingly, his appeal will be dismissed with costs.

Associate:

Dated:    22 May 2019