FEDERAL COURT OF AUSTRALIA

ELM21 v Minister for Home Affairs [2021] FCA 1604

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the Respondents’ costs.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the Respondent’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    The applicant in this proceeding is a citizen of Sri Lanka who arrived in Australia by boat, without a visa, in [redacted] 2012. He applied for a protection visa in [redacted] 2012 which was refused by a delegate of the Minister for Immigration and Citizenship on [redacted] 2013. He sought merits review of that decision by the Refugee Review Tribunal, which affirmed the decision on [redacted] 2015. The applicant then made two series of applications for judicial review and appeals to the Federal Circuit Court, this Court and to the High Court, all of which were unsuccessful. The applicant also made four applications to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs seeking ministerial intervention pursuant to ss 417 and 48B of the Migration Act 1958 (Cth) (the Act), which were also unsuccessful.

2    On [redacted] the Department of Home Affairs scheduled the applicant to be removed from Australia. The applicant obtained an urgent interim injunction to prevent his removal. On [redacted] he lodged a petition with the United Nations Office of the High Commissioner for Human Rights (OHCHR) and the Committee Against Torture (UNCAT) for consideration under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Amongst other things, the petition sought a ruling from the UNCAT that the applicant’s removal to Sri Lanka would infringe Australia’s non-refoulement obligations under the CAT.

3    Upon receipt of the applicant’s petition, the Rapporteur on New Complaints and Interim Measures of the UNCAT (the Rapporteur) issued an Interim Measures Request (IMR) to the Australian Government requesting that it not remove the applicant to Sri Lanka while the UNCAT considered the petition. The Department suspended the applicant’s removal from Australia while it assessed the IMR. On [redacted] 2020, the Department’s Assistant Director, International Obligations and SHP Section (the Assistant Director), prepared a recommendation to the Minister (the IMR Recommendation) in which she advised that the IMR was “unwarranted” and that the applicant’s removal to Sri Lanka does not engage Australia’s non-refoulement obligation under Article 3 of the CAT or its implied non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR).

4    On [redacted] 2020, based on the IMR Recommendation, the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Acting Minister) declared the IMR to be “unwarranted” (the Unwarranted IMR Decision).

5    On [redacted] 2021, the respondents informed the applicant that it was the respondents’ intention to remove the applicant to Sri Lanka on [redacted] 2021 (the removal decision). The applicant brought these proceedings:

(a)    against the Minister for Home Affairs; the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; the Commonwealth of Australia; and the Secretary, Department of Home Affairs (in proceeding NSD 1261/2021), in which he seeks judicial review of the Unwarranted IMR Decision, and:

(i)    declarations that the IMR Recommendation and the Unwarranted IMR Decision are affected by jurisdictional error;

(ii)    declarations that Australia owes the applicant non-refoulement obligations, including the obligation to comply with the IMR and not return the applicant to Sri Lanka while the UNCAT is considering his petition; and

(iii)    an interlocutory injunction to restrain the respondents by their officers or agents from removing the applicant from Australia pursuant to s 198 of the Act pending determination of the proceeding; and

(b)    against the Minister for Home Affairs (in proceeding NSD 1262/2021) seeking:

(i)    a declaration that the decision to remove the applicant from Australia prior to determination of the application for special leave to appeal to the High Court and of the application in proceeding NSD 1261/2021 is contrary to law; and

(ii)    an interlocutory injunction to restrain the respondent by his officers and agents from removing the applicant from Australia pending the determination of the High Court special leave application and the NSD 1261/2021 proceeding.

6    If one accepts the applicant’s account, there are good reasons for his repeated applications and appeals and requests for ministerial intervention. In his protection visa application he claimed that if returned to Sri Lanka he would be detained and harmed by authorities and the Karuna group as a suspected Liberation Tigers of Tamil Eelam (LTTE) member because of his family, who may have been involved in the LTTE, and because of his profile as a young Tamil male. He denied being personally involved in the LTTE. In support of his claim of having a well-founded fear of persecution in Sri Lanka he claimed he had been detained and beaten in 2006, 2007, 2008 and twice in 2010 (once by the Sri Lankan Authorities and once by the Karuna group); and that his maternal uncle was shot in 2006, his cousin was kidnapped in 2008, three other cousins were shot in 2009, in [redacted] a dead body was found in a place he made a delivery to and he feared being investigated, and in [redacted] 2012 Tamil males were abducted from a neighbouring village. He also claimed to fear harm because of his support for the political party, the Tamil National Alliance (TNA).

7    The Minister’s delegate did not accept that the applicant’s account was credible, was not satisfied that he had a well-founded fear of persecution if returned to Sri Lanka, and refused to grant him a visa. On review, the Tribunal also considered that the applicant’s account was not credible and affirmed the delegate’s decision.

8    Then, after the visa application and merits review process had been completed, the applicant provided a substantially different account. In ministerial intervention applications he claimed that he had been an active member of the LTTE, having undertaken weapons training and served as a medic for the LTTE in the civil war. He effectively admitted that he did not give a full and truthful account in the visa application process and on review before the Tribunal. In his ministerial intervention application in [redacted] 2018 he provided photographs which he claimed were of him in an LTTE uniform and standing at a small indoor shrine to the LTTE, and a purported copy of an arrest warrant for [redacted] which he claimed was outstanding in Sri Lanka. In a further ministerial intervention application in [redacted] 2018 he claimed that he had served in the LTTE as a medic, and that he had not disclosed this, or disclosed the other material earlier due to his fear of being classified as a terrorist by ASIO and therefore face being subject to indefinite detention in Australia or being sent back to Sri Lanka. In [redacted] 2021, in support of his petition to the UNCAT, the applicant provided a photograph which he claimed was of himself in LTTE uniform [redacted]. He said, again, that he had not previously provided the photograph due to his fears of being indefinitely detained in Australia as a terrorist.

9    I can readily understand why a person such as the applicant, who now claims that he was a member of the LTTE in a civil war in which his side was unsuccessful, and who fled that country and sought asylum in Australia, might seek to minimise his involvement in an organisation which had been classified as a terrorist organisation by Australia. But the obvious problem for him is that the fact-finders, here the delegate and the Tribunal, might conclude that the false account he gave, which involved the assertion that he was not in the LTTE but might be perceived to have been, was not credible, and therefore not accept his claim for protection. Then, in his ministerial intervention applications and in his petition to the UNCAT, the applicant provided a substantially different account and he gave the above reason for not telling the truth earlier. It was, however, open to the relevant Departmental officers assessing his ministerial intervention applications, and the Acting Minister assessing the IMR issued by the UNCAT, to decide not accept the applicant’s new account and instead treat it as confirming that the applicant’s claims shifted around, were not credible, and should not be accepted.

10    For the reasons I explain, I am not persuaded that the Acting Minister fell into jurisdictional error as alleged, nor am I satisfied that the applicant is entitled to the relief he seeks. In summary that is because:

(a)    the applicant did not establish that the Unwarranted IMR Decision is affected by jurisdictional error on the basis that (i) it is legally unreasonable due to faulty reasoning in the IMR Recommendation; (ii) it is affected by actual bias or a reasonable apprehension of bias in the IMR Recommendation; (iii) the applicant was denied procedural fairness; and/or (iv) there was a failure to consider evidence in the IMR Recommendation;

(b)    the Court does not have jurisdiction to make declarations that Australia owes non-refoulement obligations with respect to the applicant; and

(c)    in relation to the applications for interlocutory injunctions, the application by the applicant for special leave to the High Court was dismissed on [redacted] 2021 and by the attached orders the application in proceeding NSD 1261/2021 has been dismissed. There is no longer any basis for the injunctive relief claimed and it is appropriate to dismiss those applications.

It is appropriate to make orders to dismiss both applications and for the applicant pay the respondents’ costs.

THE FACTUAL AND PROCEDURAL BACKGROUND

11    The factual background and procedural history is necessarily lengthy because of the number of applications for judicial review, appeals and applications for ministerial invention; and having regard to the applicant’s assertions as to the interrelationship between them and the Unwarranted IMR Decision.

The application for a protection visa

12    In [redacted] 2012 the applicant applied for a protection visa. On [redacted] 2013 a delegate of the Minister for Immigration and Citizenship refused the application. On [redacted] 2013 the applicant sought review of the delegate’s decision by the Tribunal. On [redacted] 2015 the Tribunal affirmed the delegate’s decision. The applicant then unsuccessfully applied to the Federal Circuit Court for judicial review of the Tribunal decision:[redacted] (JR decision FCCA); unsuccessfully appealed the Federal Circuit Court decision to this Court:[redacted] (JR decision FCA); and unsuccessfully sought special leave to appeal that decision to the High Court:[redacted].

13    For much of the time that process was ongoing the applicant was living in the Australian community. He was granted bridging visas on [redacted] 2012, [redacted] 2013 and [redacted] 2015. His last bridging visa ended on [redacted] 2016, but he remained in the community until he was taken to immigration detention on or about [redacted] 2018, where he has remained ever since.

14    Upon completion of the appeals process, the Department scheduled the applicant to be removed from Australia on [redacted] 2018. The applicant obtained an urgent interim injunction to prevent that occurring and he was taken off the charter plane that had been arranged to remove him to Sri Lanka before it departed. His luggage remained on the plane and was offloaded at the [redacted] Airport in Sri Lanka on [redacted] 2018. It is uncontentious that only one of the applicant’s two suitcases were returned to him. The applicant’s claims include that he faces a risk of serious or significant harm if returned to Sri Lanka because the contents of the suitcase have come to the attention of the Sri Lankan authorities, including USBs with photographs of him in the LTTE uniform [redacted], and papers from his various applications and court proceedings which identify him as the person with the pseudonym [redacted] and as a member of the LTTE.

Other proceedings by the applicant

15    On [redacted] 2019, the applicant commenced an application for judicial review in this Court arising from an alleged breach of s 91X of the Act, in which he claimed that the publication of identifying information concerning him in the reasons for judgment of the Federal Circuit Court of Australia in the JR decision FCCA and on the Commonwealth Courts Portal (CCP) website revealed his identity to Sri Lankan authorities, including that he is the subject of the pseudonym [redacted] (the data breach application). That application was dismissed on [redacted] 2020: [redacted] ([redacted] data breach decision). The applicant unsuccessfully appealed that decision to the Full Court ([redacted]) and his application for special leave to appeal that decision to the High Court was dismissed on [redacted] 2021: [redacted].

16    While the application for special leave was pending, the applicant commenced a proceeding in the Federal Circuit Court seeking a writ of habeas corpus, which application was dismissed on [redacted] 2021: [redacted]. The applicant appealed that decision to this Court (NSD [redacted]/2021) but discontinued the proceeding on [redacted] 2021.

The applications for Ministerial intervention

17    Subsequent to the refusal of his visa application, the applicant made four applications for ministerial intervention under the Act.

The first ministerial intervention application

18    On [redacted] 2018, the applicant applied for ministerial intervention pursuant to ss 417 and 48B of the Act. Section 417(1) provides an avenue through which the Minister is empowered to grant a visa to a person notwithstanding a decision by the Tribunal to uphold the rejection of their protection visa application. Section 48B provides an avenue through which the Minister is empowered to intervene to allow a person to make a further application for a protection visa in circumstances where a person has had his or her application rejected and they are barred from making another application pursuant to s 48A of the Act.

19    The first ministerial intervention application included:

(a)    photographs which the applicant claimed were of him in LTTE uniform and at a small indoor shrine to the LTTE;

(b)    medical reports including a report regarding the applicant by a clinical psychologist with the Service for Treatment & Rehabilitation of Torture & Trauma Survivors dated [redacted] 2018 (STARTTS report); and

(c)    a purported outstanding arrest warrant dated [redacted] 2017 (the outstanding arrest warrant).

The photographs and medical report were referenced in the covering letter but the outstanding arrest warrant was not.

20    On [redacted] 2018 a Departmental case officer assessed the application under s 417 and provided it to the Acting Director, Ministerial Intervention. The case officer identified the following “Key Issues” in the assessment:

•    [The applicant] is a finally determined IMA who has been found not to engage Australia’s protection obligations and has no other matters currently ongoing with the Department.

•    The Tribunal found that he was not a witness of truth and had fabricated most of his claims. The Tribunal found that he fabricated his claim of his involvement with the Tamil National Alliance (TNA) and his claims of being detained in 2010 by Karuna group. It did not accept that he was ever involved with the TNA or that he was detained by the authorities, the Karuna group or the police either before 2010, in 2010 or later.

•    The Tribunal did not accept that he would be imputed in the post conflict environment with Liberation Tigers of Tamil Eelam (LTTE) or anti-government sentiment or that he would be of interest to the authorities, Karuna group or paramilitary groups because of his past association with his relatives who were killed or injured during the civil war. The Tribunal found that in the post war period the authorities are interested only in individuals perceived to be a threat to the integrity of Sri Lanka as a single state but did not accept that he had such a profile.

•    As he travelled to India in [redacted] and returned without incident using his own passport the Tribunal did not accept that he was wanted by the authorities.

•    The Tribunal was not satisfied that he would face a real chance or real risk of serious or significant harm on return to Sri Lanka due to his race, imputed political opinion as a supporter of the TNA or the LTTE; or because he sought asylum overseas; or because he left Sri Lanka illegally; or due to his membership of a particular social group of returning asylum seekers; or because he is a Christian; or because he would be questioned at the airport on return to Sri Lanka.

•    On [redacted] 2016, [redacted] 2017 and [redacted] 2017 the Federal Circuit Court, the Full Federal Court and the High Court respectively dismissed his appeals.

21    The “Request Summary” in the assessment stated as follows:

•    He reiterates his protection claims and states that he was a member of the LTTE, and would be imprisoned and subjected to serious harm on return. He provides photographs to the Department (that were not provided during the process of his application), which he claims are compelling evidence that he was a LTTE member, and a purported copy of an arrest warrant dated [redacted] 2017. (The Department notes that [the applicant] has had his Protection visa claims tested and finally determined before the Department and Tribunal and was found to not be owed protection obligations. On [redacted] a pre removal clearance found the case did not raise concerns relating to Australia’s non-refoulement obligations. These matters are inappropriate to consider under the s 417 guidelines.)

•    He refers to the International Health and Medical Services (IHMS) assessments of [redacted] 2018, [redacted] 2018, and [redacted] 2018, and claims that on the basis of these he is not suitable to be removed. The clinical psychologist has recommended ongoing counselling. This is essential to prevent his self-harming thoughts and suicidal ideation although the psychologist stated there is no suicidal ideation. (Copy of IHMS assessments provided.)

•    He provided a copy of a Service for Treatment & Rehabilitation of Torture & Trauma Survivors (STARTTS) report dated [redacted] 2018 that recommends that he resume counselling to assist him to manage his symptoms of depression and anxiety.

22    The case officer said that the applicant’s claims and circumstances presented in the request for ministerial intervention were not “unique or exceptional” when assessed against the Minister’s Guidelines (the Guidelines) for referral, and concluded that the applicant’s case did not meet the Guidelines. The Acting Director, Ministerial Intervention, agreed with that assessment and directed that the applicant be notified that his request for ministerial invention under s 417 was finalised without referral to the Minister.

23    On [redacted] 2018, the application under s 48B was assessed by the Assistant Director as not meeting the necessary guidelines for referral to the Minister (the first 2018 MI assessment). The Assistant Director stated:

In his request under section 48B of the Act, [the applicant’s] agent claims he was a member of the LTTE and provided photographs to support this claim. They also reiterate the claim that he will be arrested on arrival but this time due to being a member of the LTTE. They lastly claim that [the applicant] should not be removed from Australia due to the state of his mental health and provided copies of his medical reports.

[The applicant] has not previously claims [sic] either during his entry interview, his PV process or review at the RRT to be a member of the LTTE and has not provided any information as why he is only raising this claim now. The photographs provided mainly show [the applicant] in front of an LTTE shrine within a room which do not prove his membership and one photograph shows [the applicant] in front of a poster dated from 2013 whilst he was already in Australia. The other photographs, including the photograph of a young male in a military uniform, can no [sic] conclusively be [the applicant] and again, he has provided no explanation as to why he did not raise this during his PV application process. The RRT found that [the applicant] was not a witness of credibility, that he continued to change his story and was not telling the truth. They found that he would not even be imputed with an LTTE political opinion.

The RRT found that as he would not be imputed with an anti-Government polictical [sic] opinion or imputed as an LTTE member, he would not be at risk of being arrested on arrival for these reasons. They did accept that he may be arrested on arrival due to his illegal departure and that these laws are laws of general application and do not consitute [sic] as persecution.

In regards to the claims in relation to his mental health, both during the PV application decision and at the RRT review, the mental health of asylum seekers is taken into consideration in regards to the ability to recall infromation, [sic] etc. Both delegates still found [the applicant to] not be a witness of credibility even after taking this into affect [sic]. In terms of his ability to be removed from Australia, all detainees are required to undertake a health discharge assessment prior to removal and appropriate medical appointments or medication are arranged.

[The applicant] has not presented any new credible information or claims to contradict the RRT’s findings that he does not engage Australia’s protection obligations.

[The applicant’s] request was combined with a request under another ministerial intervention power and is therefore inappropriate to consider under the Minster’s guidelines.

The second ministerial intervention application

24    On [redacted] 2018, the applicant made another application for ministerial intervention under s 48B of the Act. As with the first application he attached the outstanding arrest warrant; but this time the covering letter specifically referred to it, as follows:

We enclose recent warrant for arrest, a copy of which was delivered to [the applicant’s] family, dated [redacted] 2017, for the charge of [redacted]. Should [the applicant] be removed to Sri Lanka he will be immediately arrested and interrogated and tortured for this alleged crime, as well as being punished.

25    On the same day, the Assistant Director assessed that application as being inappropriate to consider on the basis that it was a “repeat request” under section 48B (the second 2018 MI assessment). The Assistant Director said:

In his request under section 48B of the Act, [the applicant’s] agent claims he was a member of the LTTE and provided photographs to support this claim. They also reiterate the claim that he will be arrested on arrival but this time due to being a member of the LTTE. They lastly claim that [the applicant] should not be removed from Australia due to the state of his mental health and provided copies of his medical reports.

This request was finalised as inappropriate to consider on [redacted] 2018 as it was a combined request for ministerial intervention and did not provide any new claims or information to contradict the findings of the RRT.

On [redacted] 2018, [the applicant] engaged a new agent who lodged a further request for ministerial intervention under section 48B of the Act. They claim that he is at risk due to outstanding [redacted] [sic] charges in Sri Lankan which he will be arrested for upon return and provided a copy of an arrest warrant from [redacted] 2017 and will therefore be tortured by Sri Lankan authorities. They also claim he was affected by the January 2014 data breach and that he suffers from Post Tratmatic [sic] Stress Disorder (PTSD) and was not able to fully particpate [sic] in his previous assessments.

In regards to the arrest warrant, no explanation has been provided to why this was not provided to the Department when it was first issued. I alos [sic] have reason to doubt the genuieness [sic] of the document as when the [Australian Border Force (ABF)] sought a travel document for his removal from the Sri Lankan High Commission, they did not advise of any such match to an arrest warrant and likewise, when his name was provided to Colombo Post for clearance for removal, they also did not mention a match against any Sri Lankan data bases. I therefore, along with the RRT finding him not be a credible witness, do not believe that he does have an outstanding arrest warrant.

In realtion [sic] to claims of being affected by the data breach, [the applicant] was not in immigration detention on 31 January 2014 and therefore could not be affected by the data breach.

The claims in PTSD were already raised in his previous section 48B request.

[The applicant] has not presented any new credible information or claims to contradict the RRT’s findings that he does not engage Australia’s protection obligations.

The third ministerial intervention application

26    On [redacted] 2019, the applicant made another application for ministerial intervention under s 48B. On [redacted] 2019 the Acting Assistant Director, International Obligations and SHP Section, determined that the application was inappropriate to consider because it was a “repeat request” under s 48B and did not meet the Guidelines for referral (the third MI assessment). The Acting Assistant Director said:

On [redacted] 2018, [the applicant] sought Ministerial Intervention under section 417 of the Migration Act 1958 (the Act). On [redacted] 2018, a decision was made and this request was not referred to the Minister. [The applicant] has sought Ministerial Intervention under section 48B of the Act on two previous occasions including, on [redacted] 2018 and [redacted] 2018. On both occasions, the request was inappropriate to consider and was not referred.

On [redacted] 2019 [the applicant] lodged his current request for Ministerial Intervention under section 48B of the Act.

[The applicant]’s migration agent claims that passport number [redacted] is a fraudulent passport which has recently come to the attention of [the applicant] and substantiates that [the applicant] used a false identity to flee India. The agent claims that “if this document had been available to the applicant previously and had been considered by the Tribunal there could have been a different outcome.” As the original document has not been provided to the Department for examination, the document’s genuineness cannot be assessed. As such, I give no weight to this document.

[The applicant]’s migration agent maintains that his client was an LTTE member and is the subject of a warrant in Sri Lanka for charges relating to “[redacted]”. He also maintains that [the applicant] has depression and post-traumatic stress disorder. These claims were raised and addressed in [the applicant]’s previous section 48B requests.

[The applicant]’s migration agent also claims that [the applicant]’s date of birth, Tamil race and other biographical details were published by the FC and FCC, allowing his client to be identified by the authorities and pro-government paramilitary groups in Sri Lanka. He claims that this will result in [the applicant] being punished upon his return to Sri Lanka for using a false passport. I note [the applicant]’s illegal departure from Sri Lanka was assessed by the former RRT (see page [redacted]). The RRT accepted that [the applicant] would be “charged, bailed and fined up to 50,000 rupees” for departing Sri Lanka illegally but that this would not amount to serious harm.

[The applicant]’s agent also contends that the “reasoning for not referring the MI application concerning the arrest warrant dated [redacted] 2017 lacked any cogent reasoning or evidential basis and was plainly unreasonable”. As this is an allegation rather than a new claim regarding [the applicant], I have not considered it further.

Finally, [the applicant]’s migration agent contends that his client has “sur place” claims as the Department sent his client’s “personal and incriminating LTTE and asylum related judicial review materials and arrest warrant to Sri Lanka with his luggage in [redacted] 2018”. While it is evident that [the applicant]’s luggage was inadvertently sent to Sri Lanka, there is no evidence before me to suggest his luggage contained the personal and incriminating LTTE and asylum related materials claimed.

The request contains nine attachments:

•    A statement dated 18 September 2019

•    A summary of psychological treatment for [the applicant] dated 14 August 2019

•    A copy of an article entitled “was it a mistake to have the LTTE’s revolutionary song?” dated 6 August 2019

•    A copy of a complaint received by Serco on [redacted] 2018 regarding a suitcase belonging to [the applicant] which appears to have been offloaded in Sri Lanka in error, following the cancellation of [the applicant’s] removal from Australia

•    A copy of the FC decision dated [redacted] 2017

•    A copy of a transcript of proceedings from the Federal Court dated [redacted] 2017

•    A copy of the FCC decision dated [redacted] 2016

•    A photocopy of the biographical page of Sri Lankan passport number [redacted] in the name of [redacted]

•    Copies of emails relating to previous Ministerial Intervention applications

On [redacted] 2019, [the applicant’s] migration agent sent further information relating to the request. The [sic] included the following two attachments:

•    A photograph of [the applicant] allegedly in his LTTE uniform

•    A copy of an article entitled “Exclusive: all 57 ASIO refugee case warnings revised after review” dated 13 October 2019

[The applicant’s] agent claims in his [redacted] 2019 email that [the applicant’s] claims and LTTE involvement were disclosed to the Sri Lankan authorities in the FC judgment. He also states that [the applicant] “could not reveal his full involvement in the LTTE or his [redacted] charges due to fear of an adverse ASIO assessment and indefinite detention”. Finally, [the applicant’s] agent alleges that the previous s48B assessment lacked “cogent reasoning”. All of these claims have been addressed above. I note the submitted article does not refer to [the applicant] personally and I am not satisfied that the submitted photograph constitutes evidence of [the applicant’s] involvement in the LTTE.

[The applicant’s] claims were comprehensively assessed by the Department and the former RRT. Furthermore, the former RRT decision was judicially reviewed on four separate occasions and none of the relevant courts, found any legal error in the decision.

The claims contained in [the applicant’s] request are not considered likely to result in a finding that Australia’s protection obligations are engaged. This request for Ministerial Intervention is considered not to meet the Minister’s Guidelines. Therefore the case should not be referred to the Minister for consideration under section 48B.

The fourth ministerial intervention applications

27    On [redacted] 2020 the applicant made another application under s 48B. That too was determined as not meeting the Guidelines on [redacted] 2020 (the fourth MI assessment). The materials before the Court do not include that assessment.

The Interim Measures Request and the Australian Government response to it

The IMR

28    On [redacted] 2018 the applicant lodged a petition with the UNCAT for consideration under article 22 of the CAT, which sought, amongst other things, a ruling that removing the applicant to Sri Lanka would be in breach of Australia’s non-refoulement obligations under the CAT. On the same day the Rapporteur issued the IMR, which requested that the Australian Government not return the applicant to Sri Lanka while the UNCAT considered his petition.

29    The evidence shows that the Department suspended the applicant’s removal from Australia while it considered the appropriate response to the IMR.

The IMR Recommendation

30    On [redacted] 2020, the Assistant Director prepared the IMR Recommendation. I later set out the salient paragraphs of the IMR Recommendation, and for the present purpose it suffices to note that after setting out the history of the applicant’s unsuccessful visa application and noting his petition to UNCAT, the IMR Recommendation summarised:

(a)    the claims made by the applicant in his protection visa application in [redacted] 2012;

(b)    the findings made by the delegate in refusing to grant the applicant a visa;

(c)    the claims made by the applicant before the Tribunal and the findings of the Tribunal in refusing to grant him a visa; and

(d)    the claims made by the applicant in his ministerial intervention applications; and the Department’s assessments in relation to those requests.

31    The Assistant Director then turned to assess the applicant’s claims in the petition to UNCAT, and considered the country information regarding the situation in Sri Lanka.

32    Under the heading “Summary of claims and assessment” the IMR Recommendation said:

Overall, the inconsistencies of [the applicant’s] claims in his requests for MI regarding his alleged involvement with the LTTE differ from those he has made as part of the [UNCAT] complaint. They have also differed at each stage of consideration throughout the protection assessment process. Taking into account these and other significant inconsistencies, both the departmental delegate and the RRT determined that [the applicant’s] claims as to his alleged LTTE involvement are unfounded.

[The applicant] has not provided credible evidence to substantiate his claims that the Sri Lankan authorities perceive him to have a personal connection with the LTTE or to be affiliated with it in anyway, or that there is a foreseeable personal, present and real risk that he will be tortured. Further, even if [the applicant’s] evidence regarding his membership or association with the LTTE is taken to be credible, it is arguable that this does not elevate his profile such that it would bring him to the adverse attention of the Sri Lankan authorities.

33    The IMR Recommendation concluded as follows:

Assessment as to whether the removal of the individual may engage Australia’s non-refoulement obligations and/or whether there are any other relevant international law issues or circumstances which may warrant the IMR

Based on the information above and the information presented in the [UNCAT] complaint, I consider the IMR to be unwarranted, as I am satisfied there are not substantial grounds for believing there is a real risk [the applicant] would be subject to arbitrary deprivation of life, or to torture or cruel, inhuman or degrading treatment or punishment on return to Sri Lanka, as a necessary and foreseeable consequence of his removal from Australia.

Therefore, I am satisfied [the applicant’s] removal to Sri Lanka does not engage Australia’s non-refoulement obligation under Article 3 of the CAT, or its implied non-refoulement obligations under the ICCPR.

The Attorney-General’s Department has been consulted on the international law issues relevant to this IMR assessment.

The further IMR request

34    On [redacted] 2020, the Chief of the Human Rights Treaties Branch of the OHCHR wrote to the applicant’s solicitor advising that it had also decided to request the Australian Government “to secure the complainant’s release from the immigration detention facility while his case is under consideration by the Committee”.

The Unwarranted IMR Decision

35    On [redacted] 2020 the Department provided a document to the Acting Minister, headed “Submission for decision” and titled “Request to have Interim Measures Requests issued by the United Nations Committee against Torture declared unwarranted in relation to [the Applicant…]”. The document related to two IMRs issued by the UNCAT, concerning the applicant and another unidentified person, respectively. It comprised three parts; the first part being a seven page briefing note to the Acting Minister; the second part being “Attachment A”, the IMR Recommendation relating to the applicant dated [redacted] 2020; and the third part being “Attachment B”, the IMR recommendation relating to the unidentified person.

36    The opening page of the briefing note provided for the Acting Minister to note various matters and to indicate whether or not he agrees that the IMR in relation to the applicant is unwarranted. It said:

Recommendations

That you:

37    On [redacted] 2020, the Acting Minister circled “noted” next to the points (1), (2) and (3) above, and circled “agreed” next to point (4), thereby deciding, based on the IMR Recommendation, that the IMR in relation to the applicant was “unwarranted”.

38    As indicated in the briefing note, the Acting Minister’s decision triggered a process whereby the Attorney-General’s Department requested the UNCAT to lift the IMRs and the Department took steps to remove the applicant from Australia. On 7 December 2020 an officer of the Department sent an email to various addressees (whose identities are redacted in the materials) noting that the Acting Minister had agreed to the Department’s recommendation in relation to the IMR and stating that “the IMR issued in respect of [the applicant…] is no longer considered a barrier to removal and removal planning may progress”.

The further IMR request

39    On [redacted] 2021, the Chief of the Human Rights Treaties Branch of the OHCHR wrote to the applicant’s solicitor to advise that the UNCAT had reiterated its requests to the Australian Government to, (a) refrain from returning the applicant to Sri Lanka, and (b) release him from immigration detention while his complaint is under consideration by UNCAT.

The Australian Government request to withdraw the IMRs

40    On [redacted] 2021, the Australian Government wrote to the OHCHR and the UNCAT attaching a lengthy submission in relation to the IMRs made on [redacted] 2018 and [redacted] 2020, and reiterated on [redacted] 2021. The letter reiterated some of the material from the IMR Recommendation and concluded by stating:

The Australian Government has assessed the [applicant’s] claims in the communication, including through processes established under its Interim Measures Request Policy, and found that there is no new and credible information in the [applicant’s] submissions that engages Australia’s non-refoulement obligations, including under Article 3 of the CAT. Detailed reasons for this conclusion (which are also reflected in the Australian Government’s submissions on admissibility and merits of [redacted] 2019 and additional submissions of [redacted] 2020) are provided at Attachment A.

In light of the Australian Government’s consideration of the request for interim measures of [redacted] 2018, and its assessment that the author’s submissions are not justified, the Australian Government submits that it is not necessary to take the interim measures requested. Accordingly, the Australian Government requests that the Committee review the decision to grant the first request for interim measures (pursuant to Rule 114, paragraph 3) and withdraw the request (pursuant to Rule 114, paragraph 8).

(Emphasis added).

41    On the same day the applicant’s solicitor responded to the Australian Government’s submission, making submissions to the UNCAT as to why it should not accede to the Australian Government’s request that it withdraw the IMR.

The UNCAT’s refusal to withdraw the IMR

42    On [redacted] 2021 the Chief of the Human Rights Treaties Branch of the OHCHR wrote to the applicant’s solicitor to inform him that, after reviewing the case, the UNCAT, acting through its Rapporteur, had decided to deny the request to lift the interim measures.

43    On [redacted] 2021 the Chief of the Human Rights Treaties Branch of the OHCHR wrote to the applicant’s solicitor confirming receipt of a further submission from the applicant to the UNCAT dated [redacted] 2021, noting that the UNCAT had requested that the Australian Government not return the applicant to Sri Lanka while it was considering his complaint, and advising that the UNCAT planned to examine the applicant’s complaint in its [redacted] 2021 session.

The present application

44    On [redacted] 2021, the applicant commenced proceeding NSD 1261/2021 in this Court, in which he sought the following final orders:

(a)    an order for habeas corpus requiring the immediate release of the applicant from immigration detention on the basis that his detention is unlawful because, (i) since [redacted] 2019 the respondent has abandoned its duty to remove the applicant from Australia under s198(6) of the Act, and (ii) the Unwarranted IMR Decision is affected by jurisdictional error;

(b)    a declaration that the detention of the applicant from [redacted] 2019 to the present is unlawful;

(c)    a declaration that Australia owes non-refoulement obligations with respect to the applicant including the international obligation to comply with the IMR, and the obligation to consider the applicant’s sur place claims arising after the final determination of his protection visa application;

(d)    an order for prohibition restraining the respondent from re-detaining the applicant;

(e)    damages for unlawful imprisonment, including aggravated and exemplary damages for the contumelious behaviour of the respondent in purporting to hold the applicant for removal while they had no such intention to do so while the IMR was extant.

45    On 30 June 2021 the applicant filed an amended originating application which included a further claim that the Unwarranted IMR Decision is affected by jurisdictional error.

The removal decision and the application for an injunction

46    On 6 July 2021 the solicitors for the respondents wrote to the applicant’s solicitor in relation to two proceedings by the applicant before this Court at that time (NSD 1261/2021 and [redacted]). The letter said as follows:

…[I]t is my client’s position that neither of these proceedings are viewed as an impediment to the applicant’s removal from Australia, as neither proceeding relates to a visa decision which has not been finally determined. It is my client’s position that there is a duty to remove the applicant as soon as reasonably practicable pursuant to s 198(6) of the Act.

…[I]t is my client’s present intention to remove your client to Sri Lanka on [redacted] 2021 which is the next available flight to effect his removal from Australia.

47    On [redacted] 2021, in response to being notified that the Minister intended to remove him from Australia, the applicant filed a further amended originating application in proceeding NSD 1261/2021, which added a claim for an interlocutory injunction against the applicant’s removal pending determination of that proceeding and his application for special leave to appeal to the High Court in relation to the data protection application.

48    The application came before the Court on [redacted] 2021. The applicant’s pleading was seriously deficient, and there was also an issue as to whether this Court had jurisdiction to hear the application.

49    To address the jurisdictional issue the parties agreed that the applicant would file an application in the Federal Circuit Court and have it transferred to this Court by consent. On 11 July 2021 the applicant filed a proceeding in the Federal Circuit Court and by orders made on 12 July 2021 it was transferred to this Court. The transferred proceeding is proceeding NSD 1262/2021.

50    To address the deficiencies in the pleading I ordered the applicant to file a further amended originating application in proceeding NSD 1262/2021 together with written submissions, by 21 July 2021, which identify precisely: (a) this Court’s jurisdiction to hear and decide the application; (b) what decision(s) of one or other of the respondents is being challenged in the application; (c) what is the basis of the challenge; and (d) what is the relief sought.

51    I listed both applications for a case management hearing on 23 July 2021 and, with some pushing, the respondents gave an undertaking not to remove the applicant from Australia before that date.

52    On 22 July 2021 the applicant filed an affidavit which annexed a proposed further amended originating application. At the case management hearing on 23 July 2021 I granted leave to the applicant to rely on the further amended originating application and gave the proceedings an expedited hearing date on 6 October 2021. The respondents gave a further undertaking not to remove the applicant from Australia without first giving the applicant and my chambers 14 days’ notice.

53    On 12 August 2021, the applicant filed another affidavit which annexed a proposed second further amended application (2FAOA).

54    On [redacted] 2021, the application for special leave to the High Court was dismissed, so at that point the only extant proceedings brought by the applicant were NSD 1261/2021 and NSD 1262/2021. At the hearing on 6 October 2021 the respondents extended their undertaking not to remove the Applicant until the final determination of those proceedings. I also granted leave to the applicant to rely upon the 2FAOA.

THE LEGISLATIVE FRAMEWORK AND RELEVANT CAT ARTICLES

55    Sections 36(2)(a) and (aa) of the Act provide:

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

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

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

56    The phrase “significant harm” in s 36(2)(aa) is given content by s 36(2A) which provides:

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

57    Section 36(2A) is qualified by s 36(2B) which states:

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

58    Section 198 provides for the removal of unlawful non-citizens from Australia. It relevantly provides:

198    Removal from Australia of unlawful non-citizens

…

(6)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

  (a)    the non-citizen is a detainee; and

(b)    the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

  (c)    one of the following applies:

(i)    the grant of the visa has been refused and the application has been finally determined;

(ii)    the visa cannot be granted; and

(d)    the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

59    It is uncontentious that: (a) the applicant is a detainee; (b) who has made a valid application for a protection visa; (c)(i) the application has been refused and finally determined; and (d) the applicant has not made another valid application for a visa. It follows that s 198 applies to the applicant.

60    Sections 197C(1)-(2) of the Act provide as follows:

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

61    Article 3 of the CAT states:

(1)    No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

(2)    For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

62    Article 22 of the CAT states:

(1)    A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.

(2)    The Committee shall consider inadmissible any communication under this article which is anonymous or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention.

(3)    Subject to the provisions of paragraph 2, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph I and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

(4)    The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.

(5)    The Committee shall not consider any communications from an individual under this article unless it has ascertained that:

(a)    The same matter has not been, and is not being, examined under another procedure of international investigation or settlement;

(b)    The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.

(6)    The Committee shall hold closed meetings when examining communications under this article.

(7)    The Committee shall forward its views to the State Party concerned and to the individual.

(8)    The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary General, unless the State Party has made a new declaration.

THE APPLICATION FOR JUDICIAL REVIEW

63    The 2FAOA sets out the grounds of the application for judicial review of the Acting Minister’s Unwarranted IMR Decision as follows:

64    Paragraph one alleges:

The finding of the Minister on [redacted] 2020 that the IMR was unwarranted, and that therefore there were not any non-refoulement obligations owed with respect to the applicant, was affected by jurisdictional error, being (a) legally unreasonable as the [IMR Recommendation] underlying the decision [was] affected by faulty reasoning and real and/or a reasonable apprehension of bias; and (b) affected by denial of procedural fairness; and (c) failure to consider evidence.

65    Paragraph two alleges:

The declaration of the Respondent Minister on [redacted] 2020 that the Interim Measures Request of [redacted] 2018 from Ibrahim Salama, Chief of the Human Rights Treaties Branch of the Office of the High Commissioner for Human Rights, that Australia not refoul the applicant to Sri Lanka pending determination of his petition to the UNCAT [redacted] was unwarranted, is affected by jurisdictional error.

66    The two paragraphs cover the same broad ground, but paragraph one is better particularised as it provides four grounds of judicial review in subparagraphs (a), (b) and (c). I will address the application by reference to those four grounds and my reasons in relation to paragraph one apply equally to paragraph two.

67    The proposed relief falls into three broad categories.

68    First, the 2FAOA seeks declarations that both the IMR Recommendation and the Unwarranted IMR Decision are affected by jurisdictional error, as follows:

1    Declaration[s] that:

(i)    [the IMR Recommendation] dated [redacted] 2021 being a purported non-refoulement assessment, and which was the basis for the finding of the Minister on [redacted] 2020 that the IMR was unwarranted, is affected by jurisdictional error.

(ii)    the finding of the Minister on [redacted] 2020 that the IMR was unwarranted is affected by jurisdictional error.

I will describe these as the “proposed IMR Decision declarations”.

69    Second, it seeks declarations that Australia owes non-refoulement obligations with respect to the applicant, as follows:

2    Declaration[s] that Australia owes non-refoulement obligations with respect to the applicant, including:

(a)    The procedural international obligation to comply with the Interim Measures Requests letters issued by Office of the High a Commission for Human Rights, issued in respect of the petition [redacted] filed under Article 22 of the Convention Against Torture.

(b)    The international obligation to comply with any final findings of the Committee Against Torture concerning the petition [redacted] filed under Article 22 of the Convention Against Torture.

(c)    The obligation to consider the applicant’s sur place claims arising after the final determination of the applicant’s claims due to publication or release of the applicant’s claims in connection with his identity by the Respondent.

I will describe these as the “proposed non-refoulement obligation declarations”.

70    Third, it seeks injunctive relief in the following terms:

An urgent interim injunction restraining the respondent’s [sic] officers or agents from removing the applicant from Australia pursuant to the decision made under s 198(2) of the Migration Act 1958 pending determination of this application and proceedings in the Federal Court of Australia NSD[1261] of 2021: [redacted] v Minister for Home Affairs, Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs, Commonwealth of Australia and Secretary, Department of Home Affairs.

JURISDICTION

The proposed IMR Decision declarations

71    It is common ground that the Court has jurisdiction to hear the application for judicial review insofar as it seeks declarations that the Unwarranted IMR Decision (and the IMR Recommendation) are affected by jurisdictional error. The respondents accept that although the Unwarranted IMR Decision was not made pursuant to a power under the Act it relates to matters which concern the exercise of power under ss 197C and 198, and the controversy between the parties is thus a matter arising under the laws made by Federal Parliament and within the original jurisdiction of the Court under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (the Judiciary Act).

72    But, as the respondents submit, some of the applicant’s oral submissions go outside the grounds alleged in the 2FAOA, outside his written submissions, and beyond the reasoning in the IMR Recommendation.

73    The oral submissions by the applicant’s legal representative are not clear but, for example, the applicant submits that there had been a lack of good faith by the Australia Government in engaging with the UNCAT process and that the applicant held a reasonable expectation that the Minister would comply with the IMR and not seek to remove him from Australia once it was made by the UNCAT. The applicant seems to submit that the Minister fell into jurisdictional error in deciding to proceed with the applicant’s removal in the face of the IMR and the determination by the UNCAT not to withdraw it. That submission goes outside the pleading which asserts that the Unwarranted IMR Decision is affected by jurisdictional error. The decision not to comply with the IMR, and the removal decision, post-date the IMR Recommendation and the Unwarranted IMR Decision which are the subjects of the proposed IMR Decision declarations. The removal decision is impugned in proceeding NSD 1262/2021 but only in aid of an application for an injunction to restrain the respondents from removing the applicant to Sri Lanka pending the determination of proceeding NSD 1261/2021 and the application for special leave to the High Court.

74    The respondents contend that the applicant’s submissions are an attempt to broaden the scope of his application in a manner that would exceed the Court’s jurisdiction, but it is unnecessary to decide whether that is so. The broader claims articulated for the first time in the course of the hearing are not pleaded and no application for leave to amend the 2FAOA was made. Having previously allowed the applicant to amend his originating application on a number of occasions, I am not prepared to permit the scope of the application to be broadened through oral submissions in the hearing.

The proposed non-refoulement obligation declarations

75    The 2FAOA does not clearly articulate the basis of the claim for the proposed non-refoulement obligation declarations, nor was it clearly expressed in the applicant’s submissions. However, it seems to be based on contentions that:

(a)    the IMR gives rise to an international obligation on Australia’s part with respect to the applicant to not return him to Sri Lanka pending final determination of his petition to the UNCAT;

(b)    on [redacted] 2021, the UNCAT refused the Australian Government’s request to lift the IMR;

(c)    the removal of the applicant to Sri Lanka would be a breach of Australia’s international obligations under Article 22 of the CAT; and

(d)    the briefing note provided to the Acting Minister on [redacted] 2020 (along with the IMR Recommendation) stated:

While the department is satisfied the removal of [the applicant] and [the unidentified person] will not expose them to a real risk of the kinds of harms under Article 3 of the CAT, there is a significant risk that Australia will be found in breach of the obligation to cooperate with the UNCAT in good faith (Article 22 of the CAT) if it proceeds with the removal of [the applicant] and [the unidentified person] prior to the UNCAT lifting the IMRs.

76    The applicant submits that the Court has jurisdiction to make the proposed non-refoulement obligation declarations under 39B(1) of the Judiciary Act, which provides original jurisdiction “with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth”.

77    That submission can be accepted, as far as it goes. Section 39B(1) confers jurisdiction on the Court where a remedy of a kind referred to in that section is sought against an officer of the Commonwealth, provided it is sought “not merely colourably, but in good faith”: Tjandra v Minister for Immigration and Ethnic Affairs [1996] FCA 610; 67 FCR 577 at 580 (Lindgren J) citing R v Cook; Ex parte Twigg [1980] HCA 36; 147 CLR 15 at 26 (Gibbs J). I am satisfied that the applicant is faced with a real threat of being removed to Sri Lanka if he does not obtain the relief which he seeks, and that the application is not merely colourable. The respondents do not contend otherwise.

78    I do not, however, consider the Court has jurisdiction to make the proposed non-refoulement obligation declarations.

79    As a court created by the Commonwealth Parliament this Court may only exercise “judicial power of the Commonwealth”: s 71 of the Constitution; R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; 94 CLR 254 at 271-272 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). Section 19(1) of the Federal Court of Australia Act 1976 (Cth) provides that this Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament. As can be seen from the chapeaus to s 39B(1) and s 39B(1A) of the Judiciary Act, for original jurisdiction to exist there must be a “matter”.

80    The meaning of “matter” was well-expressed by Allsop J (as his Honour then was), writing extra-judicially in 2007 where his Honour said:

The “matter” is the justiciable controversy between the actors to it comprised of the substratum of facts and claims representing or amounting to the dispute or controversy between or amongst them. It is not the cause or causes of action brought by the plaintiff. A justiciable controversy is identifiable independently of proceedings brought for its determination. It is the whole controversy in respect of which it is the function of the court or courts (the one controversy may be fought in different places) exercising the judicial power of the Commonwealth to quell. It is the “subject matter for determination in a legal proceeding”.

Allsop, Justice James “An Introduction to the Jurisdiction of the Federal Court of Australia” [2007] FedJSchol 15.

81    In CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339 at [27] (French CJ, Kiefel, Bell and Keane JJ) explained that the requirement for a “matter” has two elements: “subject matter” and “justiciability”. In this proceeding, the “subject matter” element is satisfied by establishing that the description of the Court’s original jurisdiction in s 39B(1) encompasses the subject matter of “all claims made within the scope of the controversy”: Fencott v Muller [1983] HCA 12; 152 CLR 570 at 603 (Mason J as his Honour then was, Murphy, Brennan and Deane JJ). The applicant’s claim for injunctive relief does so.

82    In relation to the requirement to satisfy the “justiciability” element of “matter”, the Full Court in Clarence City Council v Commonwealth of Australia [2020] FCAFC 134; 280 FCR 265 at [54], [56] (Jagot, Kerr and Anderson JJ), explained as follows:

The “justiciability” element of a “matter” requires “a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy”: Fencott at 603, cited in CGU at [30]; see also Palmer v Ayres [2017] HCA 5; 259 CLR 478 (Palmer) at [24] per Kiefel CJ, Keane, Nettle and Gordon JJ. There must accordingly be a “controversy”, which must be “real and immediate”: Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 (Re McBain) at [242] per Hayne J….

…

In addition to the existence of relevant disagreement, the existence of a “matter” requires there to be “some immediate right, duty or liability to be established by the determination of the Court”: Re Judiciary Act at 265, cited in, amongst other authorities, Palmer at [27] per Kiefel, Keane, Nettle and Gordon JJ. Moreover, there must be an appropriate remedy available to the moving party: Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd [2000] HCA 11; 200 CLR 591 (Truth about Motorways) at [48]-[49] per Gaudron J; Re McBain at [244] per Hayne J. As Gleeson CJ and McHugh J expressed in Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 (Abebe) at [31], “[i]f there is no legal remedy for a “wrong”, there can be no “matter””.

83    The difficulty for the applicant’s argument on jurisdiction is that Australia’s entry into an international treaty does not create rights or liabilities or impose enforceable duties under domestic law unless those provisions have been validly incorporated into domestic law: Dietrich v The Queen [1992] HCA 57; 177 CLR 292 at 305 (Mason CJ and McHugh J); Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 286-287 (Mason CJ and Deane J).

84    The applicant does not contend that the CAT, in particular Arts 3 and 22, have been incorporated into Australian law, but the application seeks declarations to enforce obligations said to have been created pursuant to those articles.

85    The Migration Act must be understood as empowering and enabling the Minister and the Department to respond to Australia’s protection obligations, including its non-refoulement obligations. In Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [27], French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ stated that:

…[R]ead as a whole, the Migration Act contains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol...what is presently significant is that the Migration Act proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia’s international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason.

(Emphasis added).

86    In 2012 the “complementary protection regime” was introduced into the Act to give effect to Australia’s non-refoulement obligations under the CAT and the ICCPR, by inserting s 36(2)(aa) as an additional basis for the grant of a protection visa: see SZTAL v Minister for Immigration [2017] HCA 34; 262 CLR 362 at [1] (Kiefel CJ, Nettle and Gordon JJ), [43] (Gageler J), and [69]-[79] (Edelman J); APE16 v Minister for Home Affairs [2020] FCAFC 93; 277 FCR 640 at [48] (Kenny, Wheelahan and Anatassiou JJ). In Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 at [27] (Collier, Reeves and Derrington JJ) the Full Court clarified that the scope of s 36(2)(aa) is narrower than the protection afforded by the CAT, and its purpose is:

…to fulfil [Australia’s international non-refoulement] obligations to the extent to which Australia was prepared to do so. Such a view is supported by the Full Court’s reference to the High Court’s decision in SZTAL, in which it was accepted that the scope of that section was narrower than the protection afforded by the Convention Against Torture because the definition of “cruel or inhuman treatment or punishment” in the Act included the added requirement that it was intentionally inflicted.

(Emphasis added).

87    Section 197C(1) of the Act further evidences the limits of the legislature’s preparedness to fulfil Australia’s international non-refoulement obligations by providing that, for the purposes of removing an unlawful non-citizen as soon as reasonably practicable pursuant to s 198, “it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.

88    Having regard to the provisions of the Act, there is no basis under domestic law for the proposed non-refoulement obligation declarations to enforce the asserted obligations under the CAT or the ICCPR. There is no “immediate right, duty or liability to be established by the determination of the Court”: Re East; Ex Parte Nguyen [1998] HCA 73; 196 CLR 354 at [17]-[18] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) citing In re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257 at 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). Therefore, in respect of the proposed non-refoulement obligation declarations, the controversy between the parties is not “justiciable”; and there is no “matter” such that the Court has jurisdiction under s 39B(1) of the Judiciary Act.

89    It is unnecessary to decide but the respondents further submit that, if contrary to their primary submission, there is a justiciable matter, the Court does not have jurisdiction because the High Court has exclusive jurisdiction in relation to any “matters arising directly under any treaty” pursuant to s 38(a) of the Judiciary Act. They rely on Minogue v Williams [1999] FCA 1585 at [13]-[14] where Weinberg J said:

Section 75(i) of the Constitution confers original jurisdiction upon the High Court in all matters arising under any treaty. Section 38(a) of the Judiciary Act makes exclusive to the High Court the jurisdiction in “matters arising directly under any treaty”. Section 44(2) of the Judiciary Act authorises the High Court to remit such a matter, or any part thereof, to this Court.

As this Court has no jurisdiction, absent remitter, to hear “matters arising directly under any treaty”, and that is the basis upon which the applicant has sought to invoke the jurisdiction of the High Court, the jurisdiction to be exercised by this Court in this matter can only be that sought to be invoked in the High Court.

90    Section 38 of the Judiciary Act, however, expressly states that it is subject to s 39B of that Act; and s 39B(1) gives the Court jurisdiction with respect to any matter in which an injunction is sought against an officer of the Commonwealth. Here, such relief is sought.

91    In any event, if I am wrong in my view, and the Court has jurisdiction to make the proposed non-refoulement obligation declarations, I would decline to do so. In effect, the application for the proposed non-refoulement obligation declarations seeks that the Court engage in a merits review of the previous rejections of the applicant’s claim that he faces a real chance of serious or significant harm if returned to Sri Lanka, which claim was rejected on credibility grounds and where the applicant now accepts that he did not give the delegate or the Tribunal a full and truthful account. In such circumstances I would not be persuaded that it would be appropriate to make the declarations the applicant seeks.

THE GROUNDS OF REVIEW

92    The 2FAOA alleges that the Unwarranted IMR Decision is affected by jurisdictional error on the following four grounds:

(a)    it is legally unreasonable because the IMR Recommendation, and thus the Unwarranted IMR Decision, is affected by faulty reasoning;

(b)    it is legally unreasonable because the IMR Recommendation, and thus the Unwarranted IMR Decision, is affected by actual bias or a reasonable apprehension of bias;

(c)    the applicant was not afforded procedural fairness; and

(d)    the Acting Minister failed to consider the evidence.

93    In my view the claim for a declaration that the IMR Recommendation is affected by jurisdictional error is misconceived as that is just a recommendation, and not a decision. But if the applicant can establish material error in the IMR Recommendation that may be sufficient to show jurisdictional error in the Unwarranted IMR Decision, which was expressly stated to be based on the Recommendation. It is appropriate to treat the challenges to the IMR Recommendation as challenges to the basis for the Unwarranted IMR Decision.

The faulty reasoning claim

94    The 2FAOA is prolix and hard to follow, and the submissions by the applicant’s legal representative are often unclear. However, keeping that caution in mind, the applicant alleges that the Unwarranted IMR Decision shows legal unreasonableness and is thereby affected by jurisdictional error because of faulty reasoning in the IMR Recommendation in relation to the purported outstanding arrest warrant.

95    The following passages of the IMR Recommendation are salient:

Regarding [the applicant]’s claim about his risk due to outstanding [redacted] charges and the document he provided purporting to be an arrest warrant, the departmental officer making the assessment on his request for Ministerial Intervention noted that no explanation had been provided as to why this evidence was not provided to the Department when it was first issued. The departmental officer noted that they had reason to doubt the genuineness of the document, citing that the Sri Lankan High Commission did not advise the ABF of this or any other concerns relating to [the applicant] when they sought a travel document for his removal. The Sri Lankan High Commission did not advise of any match to an outstanding arrest warrant and likewise, when his name was provided to Colombo Post for clearance for removal, authorities in Sri Lanka also did not mention a match against any Sri Lankan databases. The RRT also found [the applicant] not to be a credible witness, and did not believe that he had an outstanding arrest warrant, as claimed.

The assessing departmental officer therefore found [the applicant] to not be a credible witness, and was not satisfied that he had an outstanding arrest warrant. It was determined that there was no new credible information or claims, and therefore, [the applicant] did not meet the guidelines for referral to the Minister.

(Emphasis added).

96    The IMR Recommendation went on to state that “[c]ountry information indicates that document fraud is widely and well-practised in Sri Lanka. Document fraud is prevalent in Sri Lanka and attempts to use these documents for immigration and asylum processes are common”. It referred to country information regarding document fraud in Sri Lanka by reference to reports by the Australian Department of Foreign Affairs and Trade (DFAT), the UK Home Office, the British High Commission in Colombo, and the Canadian High Commission in Colombo. It concluded:

In considering [the applicant’s] situation regarding his claimed outstanding arrest warrants, the Department notes the country information that many fraudulent documents may be obtained in Sri Lanka. The country information indicates that fraudulent documentation is widespread in Sri Lanka and easy to procure. Given the findings above regarding [the applicant’s] previous ministerial requests and the country information, the Department does not accept that the arrest warrant is reliable evidence that [the applicant] has outstanding [redacted] charges in Sri Lanka and the Department gives the purported arrest warrant no weight.

(Emphasis added).

The applicant’s submissions

97    As the applicant submits, the highlighted sentence in the extract at [95] above suggests that the Tribunal had considered a claim by the applicant that he would face an outstanding arrest warrant for [redacted] on return to Sri Lanka and concluded that it did not believe that the warrant was genuine. However, as the applicant contends, that was not correct. In his visa application the applicant did not claim that he would face an outstanding arrest warrant and that claim was not before the Tribunal when it made its decision on [redacted] 2015. On the applicant’s case, the arrest warrant did not even exist at the time his application was before the Tribunal; it being dated [redacted] 2017. He says he did not become aware of the outstanding arrest warrant until after that date and he first provided a copy of the purported arrest warrant to the Department on [redacted] 2018, in the first ministerial intervention application.

98    The applicant further argues that the fact that the first 2018 MI assessment made no reference to the alleged outstanding arrest warrant is an error of some significance because the Guidelines in relation to applications for ministerial intervention under s 48B provide that the first time an a ministerial intervention application is considered is the primary consideration of the application, and all subsequent application under s 48B are treated as “repeat requests”. The Guidelines were not before the Court, but the applicant’s solicitor extracted the relevant paragraphs as follows, and the respondents did not submit they were inaccurate:

6.    Repeat s 48B requests

Where I (or another Minister) have previously considered the public interest power to lift the s 48A bar in respect of a person, all subsequent requests in respect of that person are considered repeat requests. In addition, if a person or their authorised representative has previously requested the exercise of my public interest power, any subsequent requests about that person are considered repeat requests.

I consider that each time a person raises new claims following an initial s 48B request, their claims become less compelling, owing to the opportunities already afforded to the person to put forward all protection claims. I expect officers of my Department to apply this reasoning where a person does not depart Australia and instead requests another consideration of my public interest power.

(Emphasis added).

99    The applicant further submits that the Assistant Director’s consideration of the alleged outstanding arrest warrant in the second 2018 MI assessment was misleading because it implied that the applicant had not provided a copy of the outstanding arrest warrant to the Department in the first ministerial intervention application, when in fact he had. The second 2018 MI assessment relevantly stated:

On [redacted] 2018, [the applicant] engaged a new agent who lodged a further request for ministerial intervention under section 48B of the Act. They claim that he is at risk due to outstanding [redacted] [sic] charges in Sri Lankan which he will be arrested for upon return and provided a copy of an arrest warrant from [redacted] 2017 and will therefore be tortured by Sri Lankan authorities. They also claim he was affected by the January 2014 data breach and that he suffers from Post Tratmatic [sic] Stress Disorder (PTSD) and was not able to fully particpate [sic] in his previous assessments.

In regards to the arrest warrant, no explanation has been provided to why this was not provided to the Department when it was first issued. I alos [sic] have reason to doubt the genuieness [sic] of the document as when the ABF sought a travel document for his removal from the Sri Lankan High Commission, they did not advise of any such match to an arrest warrant and likewise, when his name was provided to Colombo Post for clearance for removal, they also did not mention a match against any Sri Lankan data bases. I therefore, along with the RRT finding him not be a credible witness, do not believe that he does have an outstanding arrest warrant.

(Emphasis added).

100    The applicant contends that it was unreasonable for the Assistant Director to conclude that the second ministerial intervention application was “inappropriate to consider” on the basis that it was a “repeat request” under s 48B of the Act given that the assessment contained that new analysis.

101    Relatedly, the applicant relies on a paragraph in the IMR Recommendation which states that the outstanding arrest warrant had been provided “again” for the purpose of the second 2018 MI assessment. The IMR Recommendation states:

On [redacted] 2018, [the applicant] lodged a request for MI under section 48B of the Act. He claimed that he was at risk due to outstanding [redacted] charges in Sri Lanka and will be arrested upon return. [The applicant] again provided a document purported to be an arrest warrant, dated [redacted] 2017, to support this claim.

(Emphasis added).

102    The applicant argues that the use of “again” was misleading in the absence of an acknowledgement that a copy of the outstanding arrest warrant had been provided in both the first and second ministerial intervention applications but was only considered, for the first time, in the assessment of the second ministerial intervention application. He contends that the IMR Recommendation was written in such a way “as to inevitably mislead the Minister through failing to inform him that it was previously submitted. The word ‘again’ is used in such [an] ambiguous manner as to be uninformative to the Minister of the true facts.”

103    The applicant also contends that it was faulty reasoning and “misleading” for the IMR Recommendation to rely on an assumption that the Sri Lankan High Commission would:

(a)    conduct a search for an outstanding arrest warrant through any or all Sri Lankan databases or watch-lists; and

(b)    provide any such information concerning the applicant to the Australian authorities, without it having even been requested.

104    He contends there is no evidence of any communication between the Sri Lankan High Commission and the ABF or the Department in response to the letter on [redacted] 2018 sent by the ABF to the Sri Lankan High Commission requesting travel clearance for the applicant. He notes that the only relevant document under a Freedom of Information (FOI) request to the Department is an email attaching the temporary travel document sent by a senior ABF officer on [redacted] 2018 to the “Removals Helpdesk”, which made no mention of any such inquiries or communications. The applicant also submits that there is nothing in the documents provided to him under FOI to indicate that there was any communication at all between DFAT’s Colombo post and the relevant Sri Lankan agencies throughout the travel clearance process. Whether and if any such communication was made by either the primary officer undertaking the pre-removal clearance process, or by the Assistant Director in her capacity as supervisor, or by another person, there is no record or evidence of such communication in the documents received under FOI.

105    The applicant also argues that it was misleading for the second 2018 MI assessment and the IMR Recommendation to suggest that the outstanding arrest warrant would have been the subject of inquiry with the Sri Lankan High Commission in the course of the application for a temporary travel document, when any such communications during the travel clearance process in [redacted] 2018 occurred prior to the applicant providing the alleged outstanding arrest warrant to the Department on [redacted] 2018, so the Department did not know that it existed at the time of the travel clearance request.

106    The applicant argues that it was erroneous for the Assistant Director to doubt the reliability of the outstanding arrest warrant on the basis that the Sri Lankan High Commission did not advise the ABF of it, and because DFAT’s Colombo post did not advise of any match against any Sri Lankan databases when the applicant’s name was provided for clearance for removal. He submits that the Assistant Director’s conclusion was just a “thought bubble” which she came up with as an attempt to “get rid of the problem” – the problem being that she had failed to consider the outstanding arrest warrant in assessing the first ministerial intervention application. The applicant says that the Assistant Director’s reliance on that reason in concluding that she was not satisfied as to the reliability of the outstanding arrest warrant reveals legal unreasonableness.

107    On the applicant’s argument, this asserted faulty reasoning “fatally infects” the Unwarranted IMR Decision with jurisdictional error. He argues that the removal decision was contingent on the false premise that the applicant was not owed any international non-refoulement obligations (as stated in the Unwarranted IMR Decision), which premise was arrived at due to the “fatally flawed finding” that the purported outstanding arrest warrant was not genuine and the applicant did not have any outstanding criminal charges in Sri Lanka. He says that this flawed conclusion was reiterated in the pre-removal clearance assessment undertaken by the Department on [redacted] 2021 which states:

All of [the applicant’s] protection claims have been comprehensively assessed and he has been found not to engage Australia’s protection obligations. There is no information before me to indicate that [the applicant] is of adverse interest to the authorities in Sri Lanka or that he is wanted to face criminal charges in Sri Lanka.

(Emphasis added).

108    He submits that, although the IMR Recommendation referred to widespread document fraud in Sri Lanka, the IMR Recommendation and thus the Unwarranted IMR Decision, “specifically rests and relies upon” the Assistant Director’s earlier findings in the second 2018 MI assessment without disclosing that she was the author of that earlier assessment.

109    Finally, the applicant contends that the IMR Recommendation reveals legal unreasonableness by its reliance on the absence of an explanation from the applicant about why he did not provide the purported outstanding arrest warrant to the Department earlier, without having asked the applicant when he was provided with the warrant or why he did not provide it at the first instance. He contends that he had received legal advice that the outstanding arrest warrant could not be provided to the Court in his application for judicial review of the Tribunal’s decision and so he provided it in his first ministerial intervention application.

Consideration

110    The power of the Acting Minister to make the Unwarranted IMR Decision is subject to an implied condition that the duty will be performed within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [3] (Kiefel CJ, Bell, Gageler and Keane JJ). An administrative decision which is illogical or irrational or lacks evident or intelligible justification, and reasoning or a finding of fact which is illogical or irrational or lacks evident or intelligible justification along the way to making the decision, may establish legal unreasonableness and thus jurisdictional error.

111    In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [4]-[6], Allsop CJ explained the principles relevant to an analysis as to whether a decision, reasoning or finding shows legal unreasonableness. At [11], his Honour explained that the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation:

...[T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

112    As the Chief Justice observed at [21], the question is “whether a decision-maker could reasonably come to the conclusion” reached. As explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, an administrative decision, or a finding along the way to that decision, will not involve legal unreasonableness if a reasonable decision-maker could reach that decision or make that finding, on the same material: at [130]-[132] and [135] (Crennan and Bell JJ) and at [78] (Heydon J). If the decision or finding is one upon which reasonable minds can differ, it will not be illogical, irrational or legally unreasonable sufficient to show jurisdictional error simply because one conclusion has been preferred to another possible conclusion. Legal unreasonableness requires more than disagreement with the result, even emphatic disagreement, by the reviewing court: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] (Gleeson CJ and McHugh J).

113    I am not persuaded the Unwarranted IMR Decision shows legal unreasonableness on the basis of faulty reasoning in the IMR Recommendation.

114    First, as I have said, it is plain that the highlighted sentence (set out in paragraph [95] above) in the IMR Recommendation is incorrect in stating that the Tribunal “did not believe that [the applicant] had an outstanding arrest warrant, as claimed”. The Tribunal did not, in fact, consider the outstanding arrest warrant which, assuming it to be genuine, did not exist at the time of the Tribunal decision. But the relevant passage of the IMR Recommendation was not incorrect in stating that the Tribunal found that the applicant was not credible, which was significant to the conclusion that the purported outstanding arrest warrant was not reliable evidence.

115    The Tribunal’s reasons, upon which the Assistant Director relied in part, are replete with its rejections of the applicant’s account and numerous adverse findings as to his credibility. For example, the Tribunal said the following at paragraphs [24], [30], [35] and [56] of its decision:

24.    …The tribunal finds his explanation of a 2001 letterhead still being used in 2013 implausible and not credible. Further it was the typed signature block that read, “former member of parliament”. It was not part of a letterhead. The tribunal considers the applicant was making up his story as he went along and [was] not telling the truth. The tribunal finds the letter is not a genuine document and places no weight on the letter.

…

30.    Having considered evidence the tribunal does not accept the applicant campaigned for the TNA or was detained because he was [a] TNA supporter or that he is an active TNA supporter or considered a political dissident. The tribunal finds the applicant has fabricated this claim about TNA involvement.

…

35.    Further the applicant’s evidence lacked credibility. For instance, he suggested he had two mobile phones with him and after being arrested, put into a cell and interrogated, he telephoned his friend. That he would still be able to have a mobile phone on him and be able to phone his friend lacked credibility. When the tribunal expressed doubt, the applicant said he had a phone and called before he was put in the cell. The tribunal considers the applicant changed his account in response to tribunal concerns.

…

56.    …Having considered his evidence about the friend’s disappearance, given his late introduction of the claim and that his account lacks credibility and concerns about his credibility generally, the tribunal does not accept the applicant’s friend was abducted, disappeared or that the wife made a complaint, or she or his family attended a protest.

(Emphasis added).

116    In summarising the first 2018 MI assessment (which the Assistant Director authored), the IMR Recommendation said that, “[w]ith reference to the RRT findings, the Department noted that [the applicant] was not a witness of credibility, that he continued to change his story and was not telling the truth.”

117    Second, the applicant’s focus on the asserted errors in the first and second 2018 MI assessments in relation to the alleged outstanding arrest warrant is misconceived. Even if there are errors in those assessments, it is not clear where that takes the applicant’s argument in this application. There is no allegation in the 2FAOA that the Departmental decisions to decline to refer the applicant’s applications for ministerial intervention are affected by jurisdictional error. It is true that, in the first 2018 MI assessment, the Assistant Director did not refer to the alleged outstanding arrest warrant (perhaps understandably when, other than attaching a copy of it, the application said nothing about the claimed warrant). But if that was an omission, little turns it, because in the second 2018 MI assessment, the Assistant Director considered the alleged outstanding arrest warrant and for the reasons given, she was not satisfied that it was genuine. Then, in making the IMR Recommendation, the Assistant Director added to her analysis for finding that the purported outstanding arrest warrant was not “reliable evidence” and should be given no weight.

118    It cannot realistically be said that in making the IMR Recommendation, the Assistant Director consideration of the applicant’s claim that he was the subject of an outstanding arrest warrant and faced a real chance of suffering serious or significant harm if returned to Sri Lanka lacked a rational foundation; an evident or intelligible justification; or was plainly unjust, arbitrary or capricious, or lacking common sense. On a fair reading, the IMR Recommendation shows detailed consideration of the alleged outstanding arrest warrant. The Assistant Director summarised the manner in which she had analysed the issue previously and engaged with it afresh under the subheading “Summary of claims and assessment”. That section of the IMR Recommendation includes two pages of country information including that document fraud is widely and well-practised in Sri Lanka, and that it is difficult, at least formally, for an accused person to obtain a copy of their own arrest warrant (and, as I infer, therefore implausible that the applicant had done so). The Assistant Director implicitly adopted her conclusion in the second 2018 MI assessment that it was significant that the Sri Lankan High Commission and DFAT’s Colombo post did not mention any outstanding arrest warrant relating to the applicant from data matching against Sri Lankan databases as part of the travel clearance process.

119    The IMR Recommendation shows that the Assistant Director understood that the applicant claimed to be subject to an outstanding arrest warrant but was not satisfied that the document he provided to the Department was reliable evidence of that. Reasonable minds might differ as to that conclusion, and as to the reasoning by which the Assistant Director reached that view, but that is not enough to show legal unreasonableness. Having regard to:

(a)    the fact that the applicant’s claims have changed significantly over time;

(b)    the Tribunal’s and the Assistant Director’s view that the applicant’s claims are not credible;

(c)    the country information that document fraud is widespread and well-practised in Sri Lanka;

(d)    the country information that it is difficult for an accused to obtain a copy of their own arrest warrant in Sri Lanka (and thus implausible that the applicant had done so); and

(e)    the Assistant Director’s view that if, in fact, an outstanding arrest warrant in relation to the applicant existed, it would have been mentioned by the Sri Lankan High Commission or by DFAT’s Colombo post in the travel clearance process,

the conclusion that the alleged outstanding arrest warrant was not reliable evidence cannot be said to be one that a reasonable decision-maker could not have reached on the evidence. Nor can it be said that a reasonable decision-maker could not have engaged in the reasoning relied upon to reach that conclusion. I do not accept the applicant’s contention that the asserted errors in the first and second 2018 MI assessments are matters of real significance in this application, nor that those asserted errors “inevitably misled” the Acting Minister when making the Unwarranted IMR Decision.

120    Third, I do not accept that the Assistant Director erred in reasoning that any outstanding arrest warrant would have come to the Department’s attention through the Sri Lankan High Commission or DFAT’s Colombo post. It is plain from the reasoning in the second 2018 MI assessment and in the IMR Recommendation that the Assistant Director considered that it was likely that if there was an outstanding arrest warrant in relation to the applicant it was likely to have come to the Department’s attention through the travel clearance process. I infer that an officer in her position would have an understanding of the inquiries and communications that are usually made when an unlawful non-citizen is to be returned to Sri Lanka. The fact that there is no documentary trail to show that such inquiries were made does not show that it is improbable or implausible that such data matching inquiries or communications usually or commonly took place. Nor does it show that the Assistant Director’s reasoning in that regard was so illogical or irrational that it was reasoning that no reasonable decision-maker would have engaged in.

121    Nor is there force in the applicant’s contention that it was unreasonable for the Assistant Director to conclude that the communications or inquiries involving the Sri Lankan High Commission or DFAT’s Colombo post were unlikely to have occurred as part of the travel clearance process in [redacted] 2018 because the purported outstanding arrest warrant was not provided to the Department until [redacted] 2018. There is nothing illogical or irrational about the proposition that an arrest warrant for the applicant issued in [redacted] 2017 would be recorded on Sri Lankan databases or watch-lists when the relevant inquiries seeking a temporary travel document and travel clearance for the applicant were made in or around [redacted] 2018.

122    Fourth, there is little force in the applicant’s contention that the IMR Recommendation reveals legal unreasonableness by its reliance on the absence of an explanation from the applicant about why he did not provide the outstanding arrest warrant to the Department earlier. The outstanding arrest warrant, if genuine, is dated in [redacted] 2017. The applicant received it from his family after that date. He did not provide it to the Department until his first ministerial intervention application on [redacted] 2018. The applicant also argues that he had received legal advice that the outstanding arrest warrant could not be provided to the Court in his application for judicial review of the Tribunal’s decision. That cannot be right. His application for judicial review before the Federal Circuit Court was heard on [redacted] 2016 and judgment was delivered on [redacted] 2016. His appeal of that decision was heard by this Court on [redacted] 2017 and judgment was delivered that day.

The bias or a reasonable apprehension of bias claim

123    The 2FAOA alleges that the Unwarranted IMR Decision is legally unreasonable, and thus affected by jurisdictional error, because the underlying IMR Recommendation is affected by bias and/or a reasonable apprehension of bias. Although this ground is advanced under the heading of legal unreasonableness, it is better characterised as an allegation of a failure to accord the applicant procedural fairness. I will address this ground as it is advanced by the applicant but note that the answer would have been the same if it had been framed as a denial of procedural fairness.

The applicant’s submissions

124    The 2FAOA alleges that the Unwarranted IMR Decision is affected by either actual or apprehended bias because the same officer of the Department, the Assistant Director:

(a)    refused the first ministerial intervention application in the first 2018 MI assessment, without considering the outstanding arrest warrant which had been included with that application;

(b)    refused the second ministerial intervention application in the second 2018 MI assessment and found “along with the RRT” that he was not a credible witness, and did not believe that he had an outstanding arrest warrant;

(c)    did not indicate in the IMR Recommendation that she was the officer who had earlier refused the ministerial intervention applications in the first and second 2018 MI assessments;

(d)    relied on the same reasoning from the second 2018 MI assessment to consider the applicant’s case and prepare the IMR Recommendation for provision to the Acting Minister, without advising that she authored both documents; and

(e)    acted as the supervisor who approved the pre-removal clearances dated [redacted] 2018 and [redacted] 2021.

125    The applicant argues that “[i]t is extraordinarily bad that the very person who called the applicant a liar and rejected the genuineness of the arrest warrant on [[redacted] 2018], purported to undertake [the IMR Recommendation] and relied upon her own findings and reasons, without revealing that it was her who was that person who made the earlier decision.”

Consideration

126    I am not satisfied that the Unwarranted IMR Decision is affected by jurisdictional error on the basis that the IMR Recommendation was affected by either actual or apprehended bias.

127    The applicant’s argument depends on the fact that the Assistant Director, who prepared the IMR Recommendation, also authored the first and second 2018 MI assessments, and supervised his pre-removal clearances. The applicant alleges actual or apprehended bias by reason of pre-judgment on the part of the Assistant Director.

128    But in the context of administrative decision-making, the rule against bias does not necessarily require “a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind…with respect to it”: R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; 122 CLR 546 at 554 (Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ). Nor does the fact that a decision-maker has previously expressed a view on the same or a similar subject, of itself, give rise to an apprehension that he or she will not bring a fair and impartial mind to the new decision to be made: see, for example, albeit in relation to judicial officers, Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352 (Mason J).

129    In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507, Hayne J (with whom Gleeson CJ and Gummow J agreed) explained that:

(a)    the rules in relation to bias through prejudgment are different in administrative decision-making as compared to judicial decision-making: at [180];

(b)    specialised administrative tribunals can be expected to bring to the task of decision-making “a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications”. Such a decision-maker could be expected to build up “expertise” in matters such as country information; and “[o]ften information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment”: at [180];

(c)    saying that a decision-maker has prejudged or will prejudge an issue, or that there is a real likelihood that a reasonable observer might reach that conclusion, involves the following contentions in respect of the decision-maker:

(i)    they have an opinion on the relevant aspect of a matter in issue;

(ii)    they will apply that opinion to the matter in the case; and

(iii)    they “will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case” (emphasis added): at [185];

(d)    having or expressing preconceived opinions do not constitute bias or a reasonable apprehension of bias, by pre-judgment, for it does not follow that the decision-maker will disregard the evidence: at [186].

130    His Honour explained (at [187]) that, in the case of a court, if an issue of fact ought be considered afresh for the purpose of that case, it will usually be self-evident that the issue will be decided only on the evidence advanced in that case. But for other decision-makers they “may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision”. Assessing how the rules about bias and apprehension of bias are engaged depends upon identification of the task which the decision-maker is undertaking. At [192] his Honour said:

Once it is recognised that there are elements of the decision-making process about which a decision-maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly.

131    There is no evidence sufficient to show that the Assistant Director is actually biased against the applicant, and that allegation should not have been made. The evidence shows that in the first ministerial intervention application, and in the second ministerial intervention application decided four days later, and then again in the IMR Recommendation prepared about 20 months later, the Assistant Director reached an adverse conclusion as to the applicant’s credibility. Given that the material before the Assistant Director was, by and large, the same each time, that finding is unsurprising and does not support a finding of bias. There is nothing in the evidence to show that the Assistant Director’s conclusion was incapable of alteration whatever evidence or arguments were presented.

132    In relation to the allegation of apprehended bias, it will often be the case that administrative decision-makers have to decide the same or similar issues albeit in different contexts. There is no principled reason why a person undertaking administrative functions cannot review, revise and update advice at different points in time by taking into account new information without giving rise to a reasonable apprehension of bias. It cannot reasonably be suggested that every time some new information comes to light a new administrative officer has to reach a view as to the position afresh.

133    Here there was little material difference between the claims in the first and second ministerial intervention applications and those made in the petition to the UNCAT. The facts are that, earlier, before the delegate and before the Tribunal the applicant had denied any involvement in the LTTE and said that he feared harm if returned to Sri Lanka because the Sri Lankan authorities and others may have thought that he was so involved. Then in his ministerial intervention applications he said he was an LTTE member, that he undertook weapons training and worked as a medic for the LTTE, that he faced an outstanding [redacted] charge in Sri Lanka, and he provided photographs which he claimed were of him in LTTE uniform and in front of a small indoor LTTE shrine. The Assistant Director did not accept that it was appropriate to refer the applications to the Minister, in part because of the earlier assessments as to the reliability of his account including that it altered over time, and also because of the Assistant Director’s view as to the reliability of the recent changes in his account. Later again, in the petition to the UNCAT in [redacted] 2021, the applicant provided a photograph which he said was of him [redacted], which he had not previously provided.

134    In the UNCAT submission, the applicant sought to explain his delay in providing the photograph. First, he said he feared that if he admitted he had been a member of the LTTE he would be indefinitely detained by the Australian authorities as a member of a declared terrorist organisation. Second, he claimed that he was unable to recover the photograph [redacted] sooner because the USB containing an electronic version of that photograph was in his suitcase which went missing in [redacted] 2018.

135    The latter of those assertions may be doubted. The applicant first admitted that he was a member of the LTTE in his first ministerial intervention application on [redacted] 2018 but he did not attach the photograph of him [redacted] to that application, nor to his second ministerial intervention application on [redacted] 2018. His luggage was not misplaced until [redacted] 2018. It is not clear to me why the applicant did not provide the photo at the time of his first or second ministerial intervention applications.

136    In the circumstances I am not persuaded that a reasonable bystander is likely to consider the Assistant Director was required to consider the applicant’s claims entirely afresh, without reference to the assessments made by earlier decision-makers, including herself. Nor am I persuaded that a reasonable bystander would consider that she had prejudged the issues and was not deciding them based on the material before her.

The lack of procedural fairness claim

The applicant’s submissions

137    The 2FAOA alleges that the applicant was denied procedural fairness because he was not given an opportunity to comment on the IMR Recommendation provided to the Acting Minister. The relevant paragraphs of the 2FAOA allege as follows:

i.    The applicant was denied the procedural fairness he was owed with respect to the non-refoulement assessment /determination that the IMR was unwarranted, through being denied the opportunity to comment on [the IMR Recommendation] dated [redacted] 2020.

ii.    Procedural fairness was owed because the applicant’s detention was extended through the suspension of the removal from [redacted] 2018 to [redacted] 2021 for the purpose of consideration of Australia’s international obligations arising as a result of the Interim Measures Request of [redacted] 2018.

iii.    The submission to the Minister incorrectly (and absurdly) states misleadingly infers that the applicant made a claim about the arrest warrant dated [redacted] 2017 to the RRT which made its decision on [redacted] 2015:

“The RRT also found [the applicant] not to be a credible witness, and did not believe that he had an outstanding arrest warrant, as claimed.”

iv.    The placement of this sentence at the end of the paragraph at page 11 concerning the 2017 arrest warrant was likely to mislead the Minister to understand that the applicant’s claims concerning the outstanding arrest warrant had been considered and rejected by the RRT, when they had not. This is because the terminology used to refer to the arrest warrants is in the same phrase as “an outstanding arrest warrant”.

v.    Had the applicant been afforded the opportunity to make comment on [the IMR Recommendation] - the decision of the Minister on this information could have been different as there would not have been a risk of misunderstanding by the Minister as to whether the Tribunal had considered this particular [redacted] 2017 arrest warrant.

138    The applicant submits that the obligation to afford him procedural fairness by providing him with an opportunity to comment on the IMR Recommendation arises because of his significant interest in the decision, citing Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564; and CMA19 v Minister for Home Affairs [2020] FCA 736 at [82] citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 590-592 (Northrop, Miles and French JJ). In Alphaone the Full Court said the following at 590-591:

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

139    Their Honours went on to say the following at 591-592:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

140    The applicant argues that he had a significant interest in the IMR Recommendation and the Unwarranted IMR Decision because his removal from Australia was suspended and therefore his detention was extended while the IMR was being considered by the Department and then the Acting Minister. He says that “[h]ad the Minister not directed the [D]epartment to lift the IMR…the Department would have considered the IMR as…an obstacle to removal”, and that but for the Unwarranted IMR Decision, the removal decision was “most unlikely”. On his argument, the Unwarranted IMR Decision determined whether he could continue to participate in the UNCAT petition procedure, and thereby avoid a real risk of suffering serious harm including torture upon removal to Sri Lanka.

141    He argues that had he been afforded the opportunity to comment on the IMR Recommendation, he would have had the chance to address the errors and flaws that he says it contains, which may have changed the Unwarranted IMR Decision.

142    In oral submissions, the applicant concedes that there was no requirement for procedural fairness in respect of the process undertaken by the respondents in determining whether the IMR was warranted or unwarranted. However, he submits that he was owed procedural fairness in respect of the Unwarranted IMR Decision insofar as it triggered the process under which the Department would proceed with the applicant’s removal from Australia, notwithstanding that the IMR was not lifted by UNCAT. As earlier noted, the relevant paragraph from the Unwarranted IMR Decision, next to which the Minister circled “agreed”, stated as follows:

(Emphasis added).

143    The applicant submits that the twofold nature of the Minister’s decision can be seen in correspondence sent by a Senior Border Force Officer, Removal Operations to “Detention Operators” after the Unwarranted IMR Decision, which stated:

[The applicant] lodged a UN Complaint and was issued with Interim Measures Request (IMR) preventing removal on [redacted]/2018 [sic]. It was deemed an impediment for removal, see [redacted]. On [redacted]/2020 the Minister declared the IMR as unwarranted and Removal Operations NSW re-commenced his involuntary removal planning. I am now the removals officer for [the applicant].

(Emphasis added).

The respondents’ submissions

144    The respondents contend that the process undertaken by the Department on the Minister’s instructions, to provide the Minister with the IMR Recommendation so as to assist the Minister, has no statutory basis and does not attract a requirement to afford procedural fairness. The respondents rely on Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180.

145    In that case French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ explained at [75]:

… that it must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation. The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme.

(Emphasis added).

146    Their Honours said (at [54]):

…[P]rocesses undertaken by the Department to assist in the Minister’s consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister’s consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister’s instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.

(Emphasis added).

147    The respondents’ submit that the IMR assessment process has no statutory basis. On their argument, the applicant lodged a petition with the UNCAT, the UNCAT issued the IMR as a request to the Australian Government, the Department provided the Acting Minister with a recommendation to assist him in making a decision in relation to the IMR, and the Unwarranted IMR Decision was the Australian Government’s response to the IMR; therefore it does not attract an obligation of procedural fairness.

148    They also argue that the respondents did not owe the applicant the opportunity to comment on their response to the IMR before providing it to the UNCAT because such a proposition is equivalent to the (absurd) suggestion that parties to a proceeding before a decision-maker are obliged to provide their opponents with the opportunity to comment on their submissions prior to filing them with the decision-maker.

Consideration

149    I do not consider the Unwarranted IMR Decision is affected by jurisdictional error on the basis that the applicant was denied procedural fairness.

150    First, as I have said, the applicant concedes that there was no requirement that he be afforded procedural fairness in respect of the process undertaken by the respondents in deciding whether the IMR was warranted or unwarranted.

151    The position here is that the respondents first sought to remove the applicant to Sri Lanka in [redacted] 2018. The applicant obtained an injunction to prevent his removal on [redacted] 2018, and on the same day he lodged a petition with the UNCAT in which he claimed that returning him to Sri Lanka would be in breach of Australia’s international non-refoulement obligations, and he sought a ruling in that regard. The same day the Rapporteur issued the IMR. The Unwarranted IMR Decision was the Australian Government’s response to the IMR, and it sought withdrawal of the IMR by the UNCAT. The UNCAT, through its Rapporteur, was to be the decision-maker in that regard and procedural fairness did not require the applicant to be provided with that response for comment, in advance of it being provided to the Rapporteur. It was a response to the applicant’s claims, and there was nothing to prevent the applicant making any further submission it wished. Nor was there any practical injustice suffered by the applicant given that the UNCAT did not accept that the IMR was unwarranted.

152    It is also worth noting that, in fact, the applicant took up an opportunity to provide a response to the UNCAT in relation to the Unwarranted IMR Decision. On [redacted] 2021 the Australian Government wrote to the UNCAT and requested that it lift the IMR, a copy of which was provided to the applicant. The letter attached a detailed submission which contained many of the same points as the IMR Recommendation. In response, the applicant lodged written submissions with the UNCAT setting out his arguments as to why the IMR should not be lifted. The Rapporteur decided not to lift the IMR. Again, it is difficult to see how the applicant suffered any practical injustice by the asserted failure to accord him procedural fairness in that forum.

153    Second, I accept that the applicant’s removal from Australia was suspended while the IMR was assessed, and that it can be said that the applicant’s detention was therefore extended as a result of the IMR assessment process. But SZSSJ shows that the process or decision must have a statutory basis in order to attract the implied requirement to afford procedural fairness.

154    It is true that in making the Unwarranted IMR Decision, the Acting Minister recognised that upon doing so, the Department would proceed with the applicant’s removal. That is, however, to describe an effect of the Unwarranted IMR Decision, not its nature. The Unwarranted IMR Decision was not, in my view, a decision to remove the applicant to Sri Lanka; it was a decision that the IMR was unwarranted. Any requirement for procedural fairness falls to be considered in that context.

155    Third, doing the best I can with the pleading and the oral submissions on the applicant's behalf, the 2FAOA does not allege that the Unwarranted IMR Decision (or the IMR Recommendation) was affected by jurisdictional error on the basis that it cleared the way for the Department to proceed with the applicant’s removal notwithstanding that the UNCAT did not lift the IMR. There was no application to amend the pleading and in circumstances where the applicant was given a number of opportunities to articulate his case, I will not permit the applicant to go beyond the pleading.

The failure to consider evidence claim

156    The 2FAOA alleges this ground by reference to three matters, being:

(a)    the STARTTS report and the Serco property register;

(b)    the applicant’s claim to have used a false passport to travel to India; and

(c)    the publication of identifying information in the JR decision FCA.

I will set out the allegations under those headings.

The STARTTS report and the Serco property register

157    The applicant contends that the IMR Recommendation failed to consider the evidence about the contents of incriminating material which he claims was in a suitcase off-loaded at [redacted] Airport on [redacted] 2018 after he was taken off the charter plane to Sri Lanka. He claims that the suitcase contained, amongst other things, the STARTTS report which detailed his allegations of sexual assault and LTTE membership. The 2FAOA alleges that the provision of his luggage to the Sri Lankan authorities gave rise to a sur place claim which was not included in the IMR Recommendation for consideration by the Minister.

158    The relevant paragraphs of the 2FAOA are as follows:

viii.    [The IMR Recommendation] did not indicate to the Minister that the STARTTS report detailing his claims, including of sexual assault and LTTE membership, was included in the luggage which was sent to Sri Lanka by the ABF.

… [Extracted paragraphs from the IMR Recommendation]

Q.    This statement in [the IMR Recommendation] fails to consider the applicant’s evidence being the SERCO property register concerning the applicant’s USBs, and legal papers, as well as the fact that the applicant clearly had possession of the STARTTS report prior to the attempted removal from Australia.

R.    The failure of [the IMR Recommendation] to refer to the STARTTS report and the contents therein constituted failure to consider a claim, and failure to consider evidence in the making of the submission to the Minister, thereby infecting the ultimate decision of the Minister on [redacted] 2020.

S.    Contrary to [the IMR Recommendation], the STARTTS report was claimed to have been included in the materials in the luggage sent to Sri Lanka and contained the following incriminating information…[Extracted paragraphs from the STARTTS report]

T.    The provision of this information to the Sri Lankan authorities gave rise to and constituted a surplace claim which was not included in [the IMR Recommendation] for consideration by the Minister in making the [redacted] 2020 unwarranted determination.

159    It is uncontroversial that STARTTS report included the following passages:

[The applicant]…joined the Liberation Tigers of Tamil Eelam (LTTE), a Tamil militant organization. [The applicant] said during his initial period with the LTTE he underwent a three month training…[B]ecause two of his uncles had high positions within the LTTE, he was somewhat protected from harm…

Following the defeat of the LTTE in 2009, [the applicant] said he lived in hiding and secrecy as the Criminal Investigation Department, (CID) of Sri Lanka and the army continuously searched for and persecuted ex-members of the LTTE. [The applicant] reported that during this period, many of his friends and colleagues were arrested or disappeared. He added that his father and brother were also persecuted as their family grocery store regularly provided food and supplies to LTTE members which meant the family was under suspicion from the government. He explained that his father and brother were taken away, interrogated, tortured and released, which frightened [the applicant] for his own safety. He added that in 2010 while walking outside, he and three friends were arrested and taken to prison and detained for fourteen days. Appearing distressed frightened and with a shaky voice, [the applicant] described that during this time he was severely tortured, beaten with pipes and logs while kneeling, starved and interrogated. [The applicant] said “I could not bear the pain of torture...it was too much, I had many injuries and was bleeding for a while with open wounds”. He added “I thought I would definitely be killed...I didn't think I would survive this”

160    The IMR Recommendation said:

On [redacted] 2019, [the applicant] made a further request for MI under section 48B of the Act. In this request, [the applicant] made the following claims:

•    …

•    he has sur place claims as the Department sent his personal and incriminating LTTE and asylum related judicial review materials and arrest warrants to Sri Lanka with his luggage in [redacted] 2018.

…

On [redacted] 2019, the Department finalised the assessment of this request as not meeting the guidelines for referral to the Minister.

…

In regards to the sur place claim regarding disclosure his personal information in his returned luggage to Sri Lanka, there no evidence to suggest that his luggage contained the personal and incriminating LTTE and asylum related materials.

…

(Emphasis added).

161    The IMR Recommendation said at another point:

[The applicant] also claims that the suitcase contained a USB containing court documents relating to his PV application; letters from Sri Lanka; a photo of his arrest warrant; revolutionary songs from the LTTE and a summons to the court in Sri Lanka.

It noted that the applicant claimed that “as a result of his suitcase arriving in Sri Lanka, the Sri Lankan authorities attended his home on two separate occasions”.

162    The applicant submits that the fact that the STARRTS report is in the hands of the Sri Lankan authorities gives rise to a real chance that he will suffer serious or significant harm if he is returned to Sri Lanka. He contends that the statement in the IMR that there is “no evidence to suggest that the missing suitcase had the LTTE and asylum related materials” fails to account for the fact that the evidence shows that he had possession of the STARTTS report prior to the attempt to remove him from Australia, and a Serco property register obtained by the applicant states that the applicant’s property at the Villawood Immigration Detention Centre (VIDC) included 5 USB sticks and 3 units of “legal/immigration paperwork”. On his argument these matters reveal a failure by the Assistant Director to consider the evidence before her, with the result that the Unwarranted IMR Decision is affected by jurisdictional error.

The false passport

163    The applicant contends that the IMR Recommendation failed to consider the evidence of him using a false passport to exit Sri Lanka to India. It stated as follows:

The claims of biographical details being publicised by the FC and FFC, and as a result he will be punished on return to Sri Lanka for using a false passport was already assessed by the former RRT and accepted [the applicant] would be “charged, bailed and fined up to 50,000 rupees” for departing Sri Lanka illegally but that this would not amount to serious harm.

164    The applicant says, and I accept, that the IMR Recommendation was incorrect in stating that the applicant’s use of a false passport had already been considered by the Tribunal. It incorrectly conflated his claim that he used a false passport to travel to India, with the Tribunal’s consideration of the applicant leaving Sri Lanka “without a passport” when he travelled to Australia by boat. The Tribunal said the following:

The tribunal accepts that the applicant departed the country illegally as he came by boat not through an authorised airport or a port and without a passport. The tribunal accepts on the basis of the country information that the applicant would be subjected to such processes on return, being charged, bailed and fined up to 50,000 rupees.

(Emphasis added).

165    The applicant argues that by conflating those two references to passports, the IMR Recommendation incorrectly stated that the false passport issue had already been considered by the Tribunal, and therefore did not consider it afresh, despite it being new information.

The publication of identifying information

166    The 2FAOA alleges that the IMR Recommendation did not consider the applicant’s sur place claim arising from the publication of information about the applicant and his family, his and their alleged involvement with the LTTE, and his alleged experiences of abuse by the Sri Lankan authorities, in various paragraphs of the judgment in the JR decision FCA. He also argues that because that proceeding was held in open court, it is possible for anyone with access to the transcript to gain access to information about the applicant’s claims to LTTE membership.

Consideration

167    I am not persuaded that these grounds establish that the Unwarranted IMR Decision is affected by jurisdictional error.

168    The relevant principles in relation to the failure of an administrative decision-maker to give “proper, genuine or realistic consideration” to evidence or submissions were usefully set out by Moshinsky J in BWT16 v Minister for Immigration and Border Protection [2019] FCA 404 at [44]-[45] as follows:

Depending on the circumstances, a failure to consider evidence may amount to a jurisdictional error. In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, Robertson J said at [111]-[112]:

[111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

[112] As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.

In Minister for Immigration and Citizenship v MZYTS (2013) 230 FCR 431, the Full Court of this Court (Kenny, Griffiths and Mortimer JJ) said, at [68]-[70]:

[68] In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusuf that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”. In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.

[69] In Kirk (at [60]-[70] and especially [69]), the High Court made express what has always been implicit in the use and application of the term “jurisdictional error”. Specifically, the Court explained that jurisdictional error is a term that takes its colour from its context and that, when the High Court in Craig v South Australia (1995) 184 CLR 163 explained why it was not prepared to follow Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and why tribunals, unlike courts, could not “authoritatively” determine questions of law, there lay behind the use of the term “authoritatively” unexpressed premises about what is meant by jurisdictional error. The Court did not seek to define the concept in Kirk, but rather acknowledged the futility of doing so, since limits on power with respect to a particular decision can only be found in the relevant statute, in the context of a particular decision, particular reasons and particular evidence and material on which the decision is based.

[70] With respect, we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the actual course of decision-making by the Tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”. We agree with his Honour’s analysis.

The STARTTS report and the Serco property register

169    It appears to be uncontroversial that one of the applicant’s two suitcases was offloaded at [redacted] Airport on [redacted] 2018, and was not subsequently returned to him. The IMR Recommendation said as follows:

On [redacted] 2018, [the applicant] made a complaint to the VIDC. In this complaint, [the applicant] advised that his black suitcase went missing as a result of his charter removal being cancelled whilst in transit to Sri Lanka. [The applicant] submitted that this suitcase contained various documents including a photograph of him and a friend in LTTE military uniform; a USB containing Australian PV court documents; letters from Sri Lanka; a photo of his arrest warrant; revolutionary songs from the LTTE and a summons to the court in Sri Lanka.

On [redacted] 2018, the VIDC conducted an investigation into the whereabouts of his black suitcase and stated that it appeared that the black suitcase was offloaded from the charter plane in Sri Lanka and not returned as intended to his location which at that point was Perth Immigration Detention Centre. The VIDC further advised [the applicant] that his suitcase arrived at [redacted] international airport on 11 [redacted].

170    The applicant has consistently claimed that one of the suitcases offloaded at [redacted] Airport contained incriminating materials, including the STARTTS report. That does not, however, show error in the statement in the IMR Recommendation that “there no evidence to suggest that [the applicant’s] luggage contained the personal and incriminating LTTE and asylum related materials”. On a fair reading, the Assistant Director meant no more than that, other than the applicant’s assertion, there was no evidence that the incriminating material was in the missing suitcase.

171    The applicant did not establish that statement was erroneous. The applicant did not establish that, other than his assertion, there was anything in the material before the Assistant Director to show that the STARTTS report or other “personal and incriminating LTTE and asylum related materials” were in the missing suitcase. The applicant seeks to rely on the Serco property register which states that the applicant’s property at the VIDC included 5 USB sticks and 3 units of “legal/immigration paperwork”. But there is nothing to show that the Assistant Director had or was aware of the contents of the Serco register; and the Serco register does not establish that the “legal/immigration paperwork” included the STARTTS report.

172    The applicant’s complaint to VIDC dated [redacted] 2018 in relation to the missing suitcase did not provide detail about the contents of the suitcase nor refer to the Serco register. Nor did the letter from the Detainee Services Manager at VIDC in response to the complaint dated [redacted] 2018, or the emails from senior ABF officers in relation to the missing suitcase dated 29 April 2021 and 7 May 2021. The third MI assessment by the Acting Assistant Director states that the third ministerial intervention application included a copy of a complaint received regarding a suitcase belonging to the applicant which was said to have been offloaded in Sri Lanka in error, but it did not refer to the Serco register or the contents of the missing luggage. The applicant contends that the Assistant Director failed to consider the fact that the applicant “clearly had possession of the STARTTS report” prior to the time the suitcase went missing. That can be accepted but it does not establish that the report was in the missing suitcase.

173    The IMR Recommendation did consider the applicant’s claim in relation to the materials said to have been contained in the missing suitcase. On a fair reading, the Assistant Director set out the applicant’s claims about the contents of the suitcase; and his assertion that Sri Lankan authorities had attended his parent’s house twice since his cancelled removal from Australia, interrogated his mother about his presence in Sri Lanka, and had told her that they are aware that the applicant is a member of the LTTE. The Assistant Director did not accept those claims because, other than his various assertions, the applicant did not provide evidence which the Assistant Director considered to be credible in support of those claims, and his claims over time had “shifted and changed”.

The false passport

174    The applicant contends, and I accept, that the IMR Recommendation did not consider the evidence that he used a false passport to exit Sri Lanka to India. Instead, the IMR Recommendation dismissed it as a matter which had already been considered by the Tribunal, noted that the applicant would be “charged, bailed and fined up to 50,000 rupees” for departing Sri Lanka illegally, and concluded that this would not amount to serious harm.

175    The reasoning in the IMR Recommendation erroneously associates the applicant’s claim about exiting Sri Lanka to India using a false passport with the earlier findings of the Tribunal regarding the consequence of his travelling to India “without a passport”. But that error needs to be considered in context.

176    It is convenient to extract the relevant paragraphs of the IMR Recommendation which deal with the false passport issue and the publication of identifying information together. They are as follows:

[In his third ministerial intervention application,] [o]n [redacted] 2019, [the applicant] made a further request for Ml under section 48B of the Act. In this request, [the applicant] made the following claims:

•    the passport number…is a fraudulent passport which has recently come to the attention of [the applicant] and substantiates that [the applicant] used a false identity to flee India..

…

•    his date of birth, Tamil race and other biographical details were published by the FC and FCC, allowing him to be identified by the authorities and pro-government paramilitary groups in Sri Lanka and will result in him being punished upon his return to Sri Lanka for using a false passport.

•    he has sur place claims as the Department sent his personal and incriminating LTTE and asylum related judicial review materials and arrest warrant to Sri Lanka with his luggage in [redacted] 2018.

…

In regards to the claim about the false passport, as the original document was not provided to the Department for examination, the documents genuineness could not be assessed.

…

The claims of biographical details being publicised by the FC and FFC, and as a result he will be punished on return to Sri Lanka for using a false passport was already assessed by the former RRT and accepted [the applicant] would be “charged, bailed and fined up to 50,000 rupees” for departing Sri Lanka illegally but that this would not amount to serious harm.

…

[The applicant] also claims that his profile is elevated as a result of the substance of his claims being publicly disclosed by the FC, and that as a result of his suitcase arriving in Sri Lanka, the Sri Lankan authorities attended his home on two separate occasions

…

[In his UNCAT petition, the applicant] also raised additional claims in relation to the acquisition of a false passport. In relation to these claims, [the applicant]’s position through the course of domestic processes has changed. The departmental delegate noted that [the applicant] stated he had “obtained a passport and went to Colombo for his travel. He initially noted that he travelled on a legal passport. Later in the interview, [the applicant] noted he was not sure if it was legal or not. However, he confirmed that it had his own photo and his own particulars such as [his] name on it.” The departmental delegate concluded that “the [applicant] travelled out of and into Sri Lanka on a genuine passport, or at least, a passport obtained through the appropriate authorities with accurate biodata details and photo.” In [the applicant]’s Ministerial intervention request dated [redacted] 2019, the departmental officer noted that [the applicant] did not provide an original document to the Department for examination and, as such, the document's genuineness could not be conclusively determined.

(Emphasis added).

177    The identified error which is bolded in the extract above only forms a small part of the analysis. As the respondents submit, having regard to that evidence and the consideration in the IMR Recommendation, the applicant did not establish that there is any real difference in the possible consequences for him between leaving Sri Lanka without a passport and leaving Sri Lanka on a false passport. I am not persuaded that the Assistant Director’s evident misunderstanding of the evidence before the Tribunal in relation to the use of a false passport is material in the sense that, if not for that error, there is a realistic possibility that the Unwarranted IMR Decision might have been different: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]–[31] (Kiefel CJ, Gageler and Keane JJ).

The publication of identifying information

178    I accept the applicant’s contention that the IMR Recommendation did not give detailed consideration to the sur place claim for protection arising from the publication of information in the JR decision FCA and the transcript of that hearing. Apart from setting out the applicant’s claims in relation to the issue, the only mention of it is the sentence highlighted in paragraph [175] above which includes the erroneous statement that the issue had already been considered by the Tribunal.

179    It appears to be uncontentious that some identifying information about the applicant was published, including; his date of birth and date of arrival in Australia in the JR decision FCCA (which information has since been redacted); his name together with information that he was the subject of the pseudonym [redacted] on the Commonwealth Courts Portal (which information has since been removed); and certain information about the applicant and the claims he has made since coming to Australia in the JR decision FCA (which information remains public).

180    Relevantly, in the [redacted] data breach decision at [redacted] Griffiths J approved the remarks of Kenny J in AVN20 v Federal Circuit Court of Australia [2020] FCA 584 at [111], stating that:

[redacted].

(Emphasis added).

Those remarks were approved by the Full Court on appeal in [redacted].

181    Prior to commencing the data breach application, the applicant raised the publication of identifying information claim in his third ministerial intervention application. That application was declined.

182    In ALZ15 v Minister for Immigration and Border Protection [2015] FCA 279 at [41]-[43], Mortimer J said in the context of an International Treaties Obligation Assessment that the relevant question in considering the publication of identifying information, is whether it gives rise to any real risk of harm to the applicant. Justice Griffiths applied a similar test in dismissing the applicant’s claim for suppression orders in the [redacted] data breach decision at [redacted] as follows:

[redacted].

(Emphasis added).

183    Here, the IMR Recommendation set out the applicant’s claim in respect of the publication of identifying information but did not address it. The applicant’s claim to fear harm based on the publication of identifying information is premised in the claim that he was, in fact, involved in the LTTE. But that is the very claim that the Assistant Director, and the previous fact-finders, did not accept. The Assistant Director found that the applicant “had not provided credible evidence to substantiate his claims that the Sri Lankan authorities perceive him to have a personal connection with the LTTE or to be affiliated with it in anyway, or that there is a foreseeable personal, present and real risk that he will be tortured.” On a fair reading, the Assistant Director did not accept that, as a result of the applicant’s biographical details and claims being publicised, there was a real chance he would be punished by Sri Lankan authorities on return to Sri Lanka. In effect, the Assistant Director found that he had made up his claim to LTTE involvement. In the circumstances I am not persuaded that the Assistant Director’s failure to consider this claim was “material” in the sense of there being a realistic possibility that, if not for that error, the outcome in the Unwarranted IMR Decision might have been different.

CONCLUSION

184    For these reasons I have made orders to dismiss both applications and for the applicant to pay the respondents’ costs.

Associate:

Dated:    18 November 2021

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