Federal Court of Australia

CGG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 584

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent's name be amended to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s cost of the appeal on a lump sum basis.

4.    On or before 4.15pm on 20 June 2023, the first respondent file any agreed minute of proposed orders fixing a lump sum in relation to the first respondent’s costs.

5.    In the absence of any agreement, the question of an appropriate lump sum amount for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    These reasons concern the appellant’s appeal from a judgment of the Federal Circuit Court of Australia, as the Federal Circuit and Family Court of Australia (Division 2) was then known, delivered on 9 April 2020. The primary judge made orders dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the respondent (Minister) to refuse the appellant’s application for a protection visa under the provisions of the Migration Act 1958 (Cth). The Minister was the first respondent and the Tribunal the second respondent in the Circuit Court proceedings.

2    The Tribunal is not named as a respondent in the appeal. No party has requested that it be joined as a necessary party to the appeal, but it may have been affected by the orders sought in the appeal if the appeal had been successful. I do not consider it is necessary for the Tribunal to be joined to the appeal because the Tribunal would not normally take an active part in proceedings of this nature. Further, as the appeal will be dismissed for the reasons set out below, the Tribunal is not affected by the outcome of the appeal.

Background

3    The appellant was born in the United Arab Emirates in 1986 but is a citizen of Sri Lanka and has lived in Sri Lanka since 1991. He arrived in Australia in February 2007, as a holder of a Higher Education Sector visa (subclass 573). This visa was renewed on several occasions and remained valid until 15 March 2014. The appellant departed Australia on a number of occasions between 2009 and 2014 to return to Sri Lanka and travel to Vietnam.

4    On 12 March 2014, the appellant lodged an application for a Protection (class XA) visa. The appellant relied on several bases in support of a claim that he feared persecution should he return to Sri Lanka, which are outlined in more detail later in these reasons. At the centre of the appellant's claim was an alleged fear of persecution on the basis that he had been incorrectly targeted by authorities due to suspected affiliation with Liberation Tigers of Tamil Eelam, a separatist organisation based in Northeast Sri Lanka.

5    On 21 April 2015, the appellant attended an interview with the delegate. On 21 May 2015, the delegate found that the appellant did not meet the criteria for the grant of a protection visa largely on the basis that the delegate found that the appellant fabricated elements of his visa application. On 19 June 2015, the appellant applied to the Tribunal seeking review of the delegate's decision.

6    On 10 April 2017, the appellant appeared at a hearing before the Tribunal to give evidence and present arguments in relation to his application, with the assistance of a Sinhalese translator. On 1 May 2017, the Tribunal affirmed the decision of the delegate not to grant the appellant a visa and provided reasons for its decision.

7    On 23 May 2017, the appellant applied to the Circuit Court for judicial review of the Tribunal's decision. The application was listed for hearing on 9 April 2020. Judgment was delivered on the same day dismissing the appellant's application. The primary judge found that the adverse credibility findings by the Tribunal were open for the reasons given by the Tribunal. Those adverse findings, according to the primary judge, could not be said to lack an evident and intelligible justification. On that basis, the primary judge found that no jurisdictional error arose by reason of the appellant’s disagreement with the adverse credibility findings.

Legislative framework

8    The Act confers power on the Minister to grant a non-citizen a visa that permits the visa holder to do either or both of travelling to and entering Australia, or remaining in Australia. The Act prescribes a number of different classes of visa, including, in s 35A, a class of visa known as a protection visa. Section 35A provides for a number of different categories of protection visa including, in s 35A(3B), a class known as Safe Haven Enterprise visas.

9    A person may apply for a protection visa under s 36 of the Act. Section 36 and Sch 2 to the Migration Regulations 1994 (Cth) set out the criteria that an applicant for a protection visa must meet. An appellant for a protection visa must meet one of the criteria set out in ss 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the refugee criterion, or on other complementary protection grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. If satisfied of all the relevant criteria for the grant of a visa, the Minister is to grant the visa under s 65 of the Act. The Minister's power to grant a visa under ss 29, 36 and 65 the Act may be (and usually is) exercised by a delegate of the Minister under s 496 of the Act.

10    The decision of the delegate in this case, to refuse the appellant a protection visa, was a Part 7-reviewable decision within the meaning of that expression in s 411(1) of the Act. A Part 7-reviewable decision is reviewable by the Tribunal in its Migration and Refugee Division and an application is to be made within 28 days after notification of the decision: ss 409(2), 412 of the Act. Subject to the Minister issuing a conclusive certificate relating to national interest that is not presently relevant, if a valid application is made under s 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision: s 414. Here, the appellant made a valid application under s 412 of the Act, and therefore, the Tribunal was obliged to review the decision of the delegate to refuse to grant the appellant a protection visa.

11    Section 417 of the Act provides that the Tribunal may, for the purpose of review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by the Act on the person who made the decision and the Tribunal may affirm the decision, or vary the decision, or, in certain circumstances, remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the Regulations, or set the decision aside and substitute a new decision, or if the applicant fails to appear - exercise a power under s 426A in relation to the dismissal or reinstatement of an application.

12    Section 422B(1) of the Act provides that Div 4 of Pt 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with in that Division. Section 422B(3) provides that in applying Div 4, the Tribunal must act in a way that is fair and just. Division 4 and ss 423 - 429A address and deal with the Tribunal's conduct of the review of a Part 7-reviewable decision. Sections 430 and 430A provide for the provision of a written statement of the Tribunal’s decision, reasons and findings on material questions of fact and the evidence or other material on which the findings of fact were based.

13    Section 474 of the Act provides that a privative clause decision: is final and conclusive; must not be challenged, appealed against, reviewed, quashed or called into question in any court; and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The effect of s 474 is to exclude a court from reviewing and granting relief for any error a decision-maker has made in respect of a privative clause decision. A decision of the Minister or a delegate refusing to grant a protection visa is a privative clause decision. However, as noted above, where a decision has been made to refuse to grant a protection visa, the unsuccessful applicant has a right to have that decision reviewed as a Part 7-reviewable decision by the Tribunal.

14    A decision of the Tribunal to affirm a decision to refuse an applicant a protection visa is also a privative clause decision to which s 474 of the Act applies. Notwithstanding the terms of s 474 of the Act, the section does not have the effect of excluding the original jurisdiction of the High Court to review decisions of administrative decision-makers for jurisdictional error under s 75(v) of the Constitution: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76], [128]. Where the Tribunal has made or purported to make a privative clause decision, the High Court's jurisdiction to review such a decision for jurisdictional error is conferred on the Circuit Court, except for certain decisions not presently relevant: s 476 of the Act. Otherwise, in respect of a decision to refuse to grant an applicant a protection visa, ss 474, 476 and 476A of the Act and s 43C of the Administrative Appeals Tribunal Act 1975 (Cth) exclude any right to apply for judicial review or to appeal to the Federal Court from a decision of the Tribunal that is a privative clause decision.

15    The Circuit Court's original jurisdiction to review a decision of the Tribunal is derived from ss 75(v) and 77(i) of the Constitution and s 476(1) of the Act. The effect of ss 474 and 476 of the Act is to limit the jurisdiction of the Circuit Court to the same jurisdiction as that which the High Court is able to exercise under s 75(v) of the Constitution with respect to a 'migration decision' that is a 'privative clause decision' or a purported privative clause decision, of the Tribunal on a review under Part 7 of the Act. The Circuit Court's power on such a review is limited to considering the extent to which the Tribunal exercised its powers within the limits of its statutory authority or failed to exercise powers it was bound to exercise. In other words, 'the inquiry is not about whether a decision which was made in the exercise of the authority was right or wrong on its merits. It is an inquiry about the boundaries of the power conferred': Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [160].

16    The constitutional writs referred to in s 75(v) of the Constitution extend the Court's jurisdiction to grant relief in the form of: an order restraining the Tribunal from exceeding its jurisdiction (writ of prohibition); an order commanding the Tribunal to fulfil a statutory duty that remains unperformed, actually or constructively (writ of mandamus); or injunction. The Court also has jurisdiction to grant relief ancillary to the constitutional writs in the form of an order quashing or setting aside a decision that was made in excess of statutory authority (writ of certiorari) or a declaration of right pertaining to the exercise or failing to exercise power: e.g. Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at [176].

17    The Federal Court has jurisdiction to hear and determine appeals from judgments of the Circuit Court exercising original jurisdiction under a law of the Commonwealth: s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). The appellate jurisdiction of the Federal Court, in these circumstances, is usually exercised by a single judge of the Federal Court: s 25(1AA)(a).

Tribunal’s decision

18    Paragraphs [1] – [6] of the Decision Record set out the background, protection claims, delegate’s decision and the application for review in the Tribunal. Paragraph [3] of the Decision Record records the appellant’s claims for protection as follows:

3.    In a written statement that accompanied his application for a Protection visa which was submitted to the Department of Immigration and Border Protection (the Department), the applicant claims:

a)    he is a Sri Lankan Sinhalese who fled Sri Lanka in fear of persecution;

b)    he was born in Abu Dhabi while his parents were living and working there. His parents returned to Sri Lanka in 1991 permanently and lived in Kandy from their return until their new house was built in 1995 in Nugegoda, Sri Lanka;

c)    his family are Buddhists and his parents are very religious and they spent their holidays and weekends at the Hill Forest Monastery in Bowalawatte;

d)    in Kandy, he had many Tamil friends and he always felt sorry for the victims of torture harassment and the disappearance of innocent Tamils living in the Kandy district;

e)    he used to discuss with the Monks at the monastery the political situation and how to solve the ethnic problems in Sri Lanka. The police suspected Tamils were accommodating and harbouring cadres of the Liberation Tigers of Tamil Eelam (LTTE);

f)    the Army and police respect of the monks and his father advised the applicant to stay away from the young monks who discussed politics;

g)    when he heard that his classmate, Sivachenthuran, from Kandy had been abducted by the LTTE, Sivachenthuran' parents approached him for assistance. The applicant spoke to his father and his father contacted a colleague, Mr Danarajah at the Seylon Bank who was a Tamil from Vanni district. He said that Mr Danarajah's nephew, Roshan Nagarajan, had contacts with the LTTE commanders and that he could release Sivachenthuran if his parents gave money to the LTTE;

h)    Sivachenthuran was released and the applicant went to Sivachenthuran's residence upon his release. The Criminal Investigation Department (CID) officers turned up, entered the house, and arrested all of them and took them to CID headquarters;

i)    the applicant was questioned and asked who facilitated Sivachenthuran's release. The applicant told them he had no knowledge as to anyone's involvement. He was detained for nearly 6 hours and then released and told that he would be contacted if the need arose. The police officers never released his friend and his whereabouts is unknown;

j)    a month later, Roshan was arrested and tortured;

k)    the applicant was arrested a short time later and was beaten. He claims they told him that Roshan mentioned the applicant has being connected with Sivachenthuran's release. He was held at the CID headquarters until his father approached a Sinhalese Minister, Dumainda Dssanayake, who released the applicant on the condition that he should cooperate with the officers;

l)    the applicant's father ordered the applicant to make plans to leave the country and arranged an agent to send him overseas;

m)    around September 2006, the applicant was taken for questioning at the CID headquarters regarding Roshan Nagarajah. His father arranged for his release and he obtained a visa to travel to Australia and the applicant arrived in Australia in 2007;

n)    the applicant returned to Sri Lanka in 2009 after being told by his father that the political situation had changed dramatically and that he did not need to worry further.

o)    While in Sri Lanka at that time, he went to the monastery and the monks did not talk to him but rather the very cold and ignored him. While he was returning home, he saw it police jeep in front of his house. The applicant immediately moved to his friend's house in Bowalawatte and called his father who arranged for him to travel to Colombo and to stay at a friend's house in Negombo. He claims his father told him that the police were searching for him and so he left Sri Lanka and return to Australia within a week;

p)     in March 2013, the applicant's friends wanted to travel together to meet him and so the applicant travelled from Australia to Vietnam to meet his friends. While there, his friends told him that the Sinhalese have no fear of any further harm and that the police officers were mainly searching for LTTE cadres and that Colombo is safe;

q)    after speaking with his father, who told him that no one had come in search of the applicant since the police officer's last visit, and missing his family, he returned to Sri Lanka in February 2014. While walking through immigration clearance and officer detained him and he was taken to Negombo police station where he was beaten severely without being given an explanation. The following day he was taken to the CID headquarters where he was beaten again for leaving the country without informing the CID. He writes that he was told that he would be charged for lending money and collecting money for the LTTE in order to release his Tamil friends;

r)    the applicant claims he was told he could not escape in the future as they had been planning to arrest him for a long time and then they escorted him home where they checked it for bank details. He claims he was then remanded at the CID headquarters but in the meantime his father spoke to minister Duminda Dissanayake who in turn spoke to President Rajapakse's brother, Gouthabaya, who ordered his release on the condition that his father paid 50 lakhs to him and who stated that if he was found in Sri Lanka in the future he would be shot and killed;

s)    the applicant then return to Australia and decided to apply for a protection.

19    Paragraphs [7] – [43] of the Decision Record describe the hearing before the Tribunal and the evidence, information and other material before the Tribunal on review. Paragraph [44] sets out the relevant law by reference to Appendix A of the Decision Record.

20    Paragraphs [45] – [74] of the Decision Record contain the Tribunal’s consideration and conclusions on the evidence and whether the appellant met the refugee protection criteria in s 36(2)(a) or the complementary protection criteria in s 36(2)(aa) of the Act.

21    In para [48] the Tribunal made the following general observation concerning the credibility of the appellant’s claims:

48.    The Tribunal carefully considered all of the applicant's evidence and claims in light of the relevant principles laid down by the courts on the assessment of credibility in protection cases, and as summarised under Credibility Assessment under Relevant Law in Appendix A. Having done so, and as discussed further in the paragraphs that follow, the Tribunal found the applicant is not a reliable witness and that his core claims and evidence are not credible. In summary, the Tribunal found his claims and his oral evidence to be vague, generalised and lacking detail. It also found his evidence is marked with unsatisfactorily explained inconsistencies and implausibility.

22    In para [52] the Tribunal rejected the appellant’s claims with respect to the release of the appellant's classmate, Sivachenthuran. The Tribunal said that it ‘does not accept the [appellant] is a person of interest to the Sri Lankan authorities as a person with relevant links to the LTTE.’ In para [53] the Tribunal rejected the appellant’s claims that he was arrested by the police or that he was taken by the Criminal Investigations Department and interrogated and mistreated.

23    In para [54] the Tribunal observed that from September 2006 until February 2007, when the appellant left Sri Lanka he did not appear to have been the subject of attention, detention or harm in Sri Lanka. In the same paragraph the Tribunal records the appellant’s response to that observation and rejects his explanations. The Tribunal then concluded:

55.    As the Tribunal does not accept the applicant's claim that he was involved in facilitating the release of Sivachenthuran through his father and through the others he nominated, including Roshan Nagarajah, it does not accept that around September 2006 the applicant was taken for questioning at the CID headquarters regarding Roshan.

56.    The applicant claimed that he spoke with the monks at the Hill Forest Buddhist Monastery and that through these discussions, which he claimed occurred in 2004 or 2005, the monks who he claimed held a different view on the Tamil issue made false allegations to the CID to the effect that they claimed the applicant was associated with the LTTE. The Tribunal found the applicant's evidence in this respect to lack credibility, because if it were the case that the monks had a divergent opinion on this issue, and if it were the case that they reported him to the CID, the Tribunal considers that in light of country information which suggests the CID were highly effective in rounding up, arresting, prosecuting persons and detaining for a very long time those who were suspected of having LTTE links, that the applicant would have been arrested, charged and not released. Further, it does not accept the applicant would have been able to depart Sri Lanka using his own passport in 2007, or return and depart in 2009, or return and depart in 2014, without being arrested and charged if he had in fact been reported by monks, or if the CID considered there was any substance to such an allegation. When this issue was put to the applicant at the hearing, the applicant submitted that when he visited in December 2009 he obtained a ticket and left within 4 to 5 days. The Tribunal does not accept this explains adequately how he was able to re−enter and depart Sri Lanka in the circumstances he claims to be in, that is, as a person of adverse interest for LTTE links. In relation to his second return in 2014, when this was put to him, the applicant was unable to explain to the Tribunal's satisfaction why he was not detained or charged.

24    Paragraphs [57] – [65] deal with the appellants claims relating to his travel to Sri Lanka in 2014 and claim that the Sri Lankan authorities required him to return to Sri Lanka to renew his passport as a pretext to detain and interrogate him. In these paragraphs, the Tribunal provides its reasons for rejecting those claims.

25    In para [66] the Tribunal considered whether the appellant would face a real chance of serious harm now or in the reasonably foreseeable future for reasons of his departure from Sri Lanka or on the basis of his returning as a failed asylum seeker. The Tribunal concluded for the reasons given in that paragraph that there was no such real chance.

26    In para [67] the Tribunal concluded that the appellant had not met the criteria for a protection visa under s 36(2)(a) of the Act. In paras [68] – [71] the Tribunal considered the criteria for complementary protection under s 36(2)(aa) of the Act and concluded that the appellant had not met those criteria essentially for the same reasons that he had not met the criteria under s 36(2)(a). Paragraphs [72] – [74] set out a summary of the Tribunal’s conclusions

27    Paragraph [75] of the Decision Record records the Tribunal’s ultimate decision to affirm the delegate’s decision to refuse the appellant’s application for a protection visa.

Primary judge’s decision

28    The appellant’s application for judicial review had two grounds as follows:

(a)    Ground 1: the [delegate] failed to properly consider all my claims.

(b)    Ground 2: the [delegate did not] give me a chance to comment on one aspect of my case.

29    The primary judge elicited further particulars of the grounds during the oral hearing. The primary judge recorded a summary of the appellant’s contentions and the primary judge’s conclusion on them as follows:

37.    These proceedings were commenced on 25 May 2017. On 4 November 2019, orders were made fixing the matter for hearing today. On 2 August 2017, orders were made by a Registrar of the Court giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

38.    At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

39.    From the bar table, the applicant took issue with the adverse credibility findings made by the Tribunal.

40.    The Tribunal provided detailed reasons in support of the adverse credibility findings, including the substantial delay in the applicant applying for the Protection visa and the applicant’s return to Sri Lanka.

41.    The Tribunal found the applicant not to be a reliable witness and that his core claims were not credible. The Tribunal, in that regard, found that the applicant had been an unsatisfactory witness and unsatisfactorily explained inconsistencies as well as the implausibility in his evidence.

42.    The adverse credibility findings by the Tribunal were open for the reasons given by the Tribunal as summarised above. Those adverse findings cannot be said to lack an evident and intelligible justification. No jurisdictional error arises by reason of the applicant’s disagreement with the adverse credibility findings.

…

45.    The applicant also referred to the Tribunal responding to a concern by the applicant about a future change in government. The applicant asserted that he had made a claim to fear harm because of a future change in government and that the Tribunal member had said that that government is not in power. There is no evidence to support the applicant’s allegations in that regard. Further, the applicant suggested that it was identified in his statement made in 2014. The Court was taken to his statement of 2014 and on its face it does not advance any claim by the applicant to fear harm by reason of a future change of government. No such claim fairly arises on the material before the Tribunal.

46.    In these circumstances, no jurisdictional error can arise by reason of the Tribunal not considering a claim that was not advanced and did not fairly arise on the material before the Tribunal. The future change of government after the Tribunal’s decision is not a matter that can give rise of itself to a jurisdictional error by the Tribunal. The applicant’s submission invites merits review. This Court is not in a position to receive fresh evidence in relation to the applicant’s claims. No jurisdictional error arises by reason of the applicant’s concerns expressed in relation to the future change of government.

47.    The Court does not accept that there is any evidence to support the applicant’s assertion that there was a claim to fear harm by reason of a future change of government. No such claim fairly arose on the material before the Tribunal. Accordingly no jurisdictional error arises by the Tribunal in that regard.

48.    On the face of the Tribunal’s reasons, the Tribunal explored with the applicant its concerns and issues in relation to the applicant’s claims and evidence.

…

54.    The applicant also raised concern in relation to what he described as “his main claim” concerning the passport, and it was suggested that this had not been given proper consideration. The applicant also advanced that this was the subject matter of his ground 1.

55.    It is apparent from the Tribunal’s reasons that the Tribunal did address the applicant’s concern in providing a letter in response to his endeavour to obtain a renewed passport. The Tribunal did directly consider and raise with the applicant what the concern was in relation to it. The Tribunal made an adverse finding in relation to the applicant’s concern and found that there is nothing sinister in that process. That was the finding that was open to the Tribunal and was logical and reasonable. There was no failure by the Tribunal to have a real and meaningful engagement with the applicant’s claims and evidence concerning the passport.

56.    The applicant suggested that there had been an aspect of his case upon which he had not been given an opportunity to comment and that was the claim he alleged that there would be a future change in government. For the reasons already given, no such claim was advanced or fairly arose on the material before the Tribunal.

57.    Nothing said by the applicant from the bar table identified any jurisdictional error.

30    The primary judge then recorded his conclusions on each of the grounds of review as follows:

Ground 1

59.    In relation to ground 1, the Tribunal’s reasons reflect a thorough and proper consideration of the applicant’s claims and evidence.

60.    There is no claim that has been identified in relation to which there has not been a proper consideration given by the Tribunal. For the reasons given above, the applicant’s submissions concerning a change in government was not a claim that fairly arose on the material before the Tribunal. The applicant’s submissions concerning the process in relation to his passport were the subject of real and genuine intellectual engagement. The adverse findings by the Tribunal were open for the reasons given by the Tribunal as summarised above.

61.    No jurisdictional error arises by reason of ground 1.

Ground 2

62.    In relation to ground 2, for the reasons already given, the Court does not accept that there was an aspect of the applicant’s claim that was advanced that he feared a future change of government. No such claim fairly arose in the material before the Tribunal.

63.    The Court does not accept the applicant’s submission that the reference to the communications between his father and the President’s brother gives rise to any such claim.

64.    Accordingly, the Court does not accept that the applicant had other than a real and meaningful hearing before the Tribunal.

65.    No jurisdictional error as alleged in ground 2 is made out.

66.    As the application fails to make out any jurisdictional error, the application is dismissed.

Grounds of appeal

31    The appeal was not conducted on the basis of the two grounds of appeal identified in the appellant’s notice of appeal. Rather, the appeal was conducted on the basis that the primary judge erred in failing to conclude that the Tribunal had made jurisdictional errors on one or more of the following grounds:

(1)    The Tribunal failed to consider, or properly consider, the appellant’s claim that the requirement that he return to Sri Lanka to renew his passport was a pretext to facilitate his return so as to detain and interrogate him.

(2)    The Tribunal failed to consider, or properly consider, an aspect of the appellant’s claim to the effect that notwithstanding a change of government, the appellant remained at risk of persecution by reason that members of the previous government remained powerful influences within Sri Lanka and there was a possibility they could return to government in the future.

(3)    There was no reasonable or proper basis for the findings made against the appellant referred to at paras [32], [53] and [66] of the Tribunal’s reasons.

32    The Minister has not taken issue with the appeal being conducted, in effect, on grounds of review that may have been somewhat different to the grounds articulated before the primary judge. In the circumstances, I will grant the appellant leave to amend his notice of appeal to contend that the primary judge made the error described above.

Appellant’s submissions

33    A Registrar of this Court made orders on 9 June 2020 that required the appellant to file and serve a written outline of his submissions no later than twenty days before the hearing date. The appellant did not file and serve submissions in accordance with that order.

34    At the oral hearing listed on 31 October 2022, I explained to the appellant the nature of an appeal from a judgment of the Circuit Court. I also explained the nature of the application for judicial review that was before the Circuit Court. I provided the appellant with an opportunity to give particulars of the grounds upon which he contended that the Tribunal made jurisdictional errors and adjourned the hearing for a period to allow him to collect his thoughts and identify the parts of the Tribunal’s reasons and materials before the Tribunal that he contended demonstrated errors of a jurisdictional nature.

35    As I was not satisfied that any explanation of the Court procedure or the nature of judicial review had been given to the appellant before the Registrar made the orders of 9 June 2020, I also made orders permitting the appellant to file further written submissions addressing the three grounds of appeal referred to earlier in these reasons and for the Minister to file responsive submissions. The appellant filed written submissions. The Minister did not file further submissions.

36    By the first two grounds, the appellant contends that the Tribunal failed to consider important integers of his claims for a protection visa. In substance, the appellant contends that by those failings the Tribunal failed to perform the statutory review of the delegate’s decision to refuse the appellant’s application for a protection visa that is mandated in Part 7 of the Act.

37    By the last ground, the appellant contends that the Tribunal’s conclusion that his claims lacked credibility were legally unreasonable. That is, the appellant contends, in substance, that jurisdictional error is to be inferred from the outcome of the Tribunal’s decision.

Minister’s submissions

38    As to ground 1, the Minister submitted, in substance, that having regard to the Tribunal’s reasons as a whole it had given real and genuine intellectual engagement to the appellant’s claims regarding his passport renewal process. Therefore, there was no error in the primary judge’s conclusion to that effect at RFD [55], [60].

39    As to ground 2, the Minister submitted, in substance, that the appellant had not made a claim (or it was not an integer of his claim) that he had a well-founded fear arising from a future change of government. Further, such a claim did not fairly arise on the materials before the Tribunal. Therefore, there was no error in the primary judge’s conclusion to the effect that the asserted error was not established at RFD [46] – [47].

40    As to ground 3, the Minister submitted, in substance, that the adverse credibility findings made by the Tribunal were open for the reasons the Tribunal had given and as the primary judge had summarised. Therefore, the primary judge’s conclusion that the credibility findings did not lack an evident and intelligible justification at RFD [42] was correct.

Applicable legal principles

41    Neither party cited any legal authorities in support of their submissions. However, I take the written and oral submissions to have proceeded on the basis that the following legal principles apply to the resolution of the issues raised in this appeal.

Jurisdictional error

42    A court exercising the original jurisdiction of the High Court under s 75(v) of the Constitution has power to issue a constitutional writ or grant ancillary relief if the applicant for the relief demonstrates that an administrative decision-maker has made a jurisdictional error. However, the concept of jurisdictional error is not straight-forward and describes a conclusion rather than a legal principle as such. It is ‘an expression not simply of the existence of error but of the gravity of that error’: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25].

43    Nonetheless, at the heart of the concept is the notion that administrative decision-makers and tribunals of limited jurisdiction must exercise decision-making powers when the legislative framework obliges them to do so and, in any case, within the legislated boundaries of those powers. Relevantly, jurisdictional error arises, subject to materiality, where a decision-maker fails to exercise power when obliged to do so, or exceeds the statutory limits of power: Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [72]; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176-180. Thus, the starting point is to determine what the Tribunal was permitted or required to do in accordance with the applicable legislation. It is then necessary to consider what action or inaction of the Tribunal it is contended took the Tribunal outside its jurisdiction or comprised a failure to exercise jurisdiction when it was bound to do so. Last, it is necessary to consider if the action or inaction of the Tribunal was of such a character as the legislature intended would deprive the action or inaction of legal force.

Legislative duty to consider claims

44    It is well-established that the Tribunal in the conduct of a Part 7 review has a duty to consider claims and issues arising from the evidence, information and materials before the Tribunal on that review. In that regard, I consider the following further principles to be uncontroversial and relevant.

(1)    The Tribunal review function requires it to consider all claims made by an appellant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42].

(2)    The Tribunal is only required to consider such claims where they are the subject of substantial clearly articulated argument, relying on established facts, or clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58], [68].

(3)    When considering the extent to which a claim is ‘articulated’ or ‘unarticulated’ or if it ‘clearly emerges’ and, therefore, was considered by the Tribunal it is important to bear in mind that there is no ‘clear distinction’ between claims and evidence: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (at [111] - [114]). The absence of a clear distinction between ‘claims’ and ‘evidence’ means that an ‘unarticulated’ claim (or integer of a claim) for protection may more readily be seen to emerge from information or evidence because that information or evidence may reveal an unarticulated aspect of the appellant’s ‘case’: SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [22] – [25].

(4)    The Tribunal makes no jurisdictional error if it merely misunderstands the evidence or makes an incorrect finding of fact. However, if the Tribunal fails to understand the claim and address the evidence with respect to that claim, it may make a jurisdictional error: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28].

(5)    A conclusion that the Tribunal has failed to perform its review function of ‘considering’ an appellant’s claims because it has ‘has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review appellants carry the onus of proof’: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [35], [47]-[48]. In this regard, in Navoto v Minister for Home Affairs [2019] FCAFC 135 the Full Court said (at [89]):

Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall ‘on the wrong side of the line’, to quote Lafu [[2009] FCAFC 140; (2009) 112 ALD 1] at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons. …

(6)    The onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; and BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38], as summarised in Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ).

(7)    'What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put': Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ). Or, here, whether the decision-maker has, as a matter of substance, had regard to mandatory relevant ‘other considerations’ in accordance with Direction 90.

(8)    ‘[T]he reasons of an administrative decision-maker are meant to inform and [are] not to be scrutinised upon over-zealous review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’: Liang at 272 . However, ‘[j]ust as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error … eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case.’: Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277 at [57].

Legally reasonable exercise of legislative power

45    Parliament is taken to have intended that a discretionary power is to be exercised reasonably: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [116]; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [29], [63], [88].

46    Legal unreasonableness may be found where, on examination of the reasons provided for the decision, it is not possible for the Court to comprehend how the decision was arrived at: Li per Hayne, Kiefel and Bell JJ at [76]. This may include illogicality or irrationality, in the sense of an outcome at which no rational or logical decision-maker could arrive on the same evidence, or a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense of a state of satisfaction or non-satisfaction that could possibly be formed by a reasonable person: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611. However, legal unreasonableness is not established in the following circumstances.

(a)    Where characterisation of a decision as ‘unreasonable’ amounts to no more than emphatic disagreement with the evaluation of the merits of a matter, within the decision-maker’s area of decisional freedom: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40].

(b)    Where reasonable minds may differ as to the outcome of or justification for the exercise of power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [92].

(c)    Where the outcome falls within the range of legally and factually justifiable outcomes: Li at [105]; Stretton at [92].

(d)    Where there is some evident, transparent and intelligible justification that lies within the reasons given for the decision: Li at [105]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [48]-[49].

47    As for all established categories of jurisdictional error, legal unreasonableness is concerned with enforcement of the law governing the limits of the power in question, and not the manner in which that power was exercised: Eshetu. As Wigney J said in Stretton:

92    … [T]he Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. …

Materiality threshold for jurisdictional error

48    In Hossain, Kiefel CJ and Gageler and Keane JJ said (footnotes omitted):

29    That a decision-maker “must proceed by reference to correct legal principles, correctly applied” is an ordinary (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that a condition or another condition be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

49    An applicant for a constitutional writ bears the onus of demonstrating that an asserted error was material. However, given the nature of the asserted errors concern an alleged failure to consider a claim or evidence in support of a claim or a legally unreasonable conclusions on the evidence relating to a claim, the onus would be discharged by meeting the undemanding standard of ‘reasonable conjecture’ that the applicant was deprived of a realistic possibility of a different outcome: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [1], [30]-[33], [39], [41]-[47], [76]-[80], [95], [105], [127].

Consideration

Ground 1

50    The appellant provided the Tribunal with a letter from the High Commission of Sri Lanka dated 15 August 2016. The Decision Record at para [8] records that the appellant claimed that he made enquiries of the High Commission and was informed that he must travel to Sri Lanka to submit a Citizenship Declaration to make a valid application for a new Sri Lankan passport. The appellant submitted that requiring him to travel to Sri Lanka to submit a Citizenship Declaration was a departure from the normal passport application procedure. The appellant submitted that an integer of his claim was that that the departure from procedure was a pretext to facilitate his return to Sri Lanka so as to detain and interrogate him upon his return. The appellant submitted that the Tribunal failed to consider, or properly consider, that claim at para [65] of the Decision Record.

51    The Decision Record does not indicate that there was any evidence about the usual Sri Lankan passport renewal procedure. The Tribunal expressed its conclusions about the letter from the High Commission of Sri Lanka as follows:

65    The Tribunal considered the applicant's evidence given at the hearing where he tabled a letter dated 15 August 2016 from the High Commission of the Democratic Socialist Republic of Sri Lanka in Canberra of the Democratic Socialist Republic of Sri Lanka. The Tribunal accepts the letter refers to an incomplete application for a new passport by the applicant, and refers the applicant to the High Commission's website for further details to apply again for a new passport. Upon considering this letter, and all the evidence and circumstances of the applicant, the Tribunal finds this does not suggest the applicant is of any adverse interest to the Sri Lankan authorities now or in the reasonably foreseeable future. It assesses this letter as a reflection of the procedure associated with the renewal of a Sri Lankan passport by a Sri Lankan national in Australia who was born outside of Sri Lanka. The Tribunal finds there is nothing sinister in the required procedure where the applicant has been advised if he wants to renew his Sri Lankan passport in Australia he will be required to return to Sri Lanka and obtain a Citizenship Declaration. Having regard to its assessment of the applicant as a person who is not of any adverse interest to the Sri Lankan authorities, it does not accept that the applicant's circumstances apropos his expired passport, or the procedure necessary for him to renew it, gives rise to a real chance of serious harm now or in the reasonably foreseeable future if he returns to Sri Lanka.

52    The Tribunal’s reasons at para [65] of the Decision Record reveal that the Tribunal considered the appellant’s claim that requiring him to return to Sri Lanka as part of the passport renewal procedure was a pretext to facilitate his return to Sri Lanka. The Tribunal was not satisfied that any requirement of the appellant to travel to Sri Lanka for that purpose was a pretext. That conclusion was based on other findings or conclusions the Tribunal had made regarding the appellant’s claims. The Tribunal was not satisfied that the appellant ‘is of any adverse interest to the Sri Lankan authorities’ or that the circumstances of the procedure for his passport renewal ‘gives rise to a real chance of serious harm now or in the reasonably foreseeable future if he returns to Sri Lanka’. The conclusions expressed in para [65], read in the context of the reasons as a whole, indicate that the Tribunal gave real and genuine consideration to the integer of the appellant’s claim to the effect that passport renewal procedure was a pretext to facilitate his return to Sri Lanka for adverse treatment at the hands of Sri Lankan authorities.

Ground 2

53    The appellant’s claim for protection were founded, in part, on a claim that, in 2014, Mr Gotabhaya Rajapkse, the brother of the President of Sri Lanka at the relevant time, made a threat to the effect that the appellant would be killed if he returned to Sri Lanka. The Decision Record at para [39] records that the Tribunal questioned the appellant about the strength of that claim at the time of the Tribunal hearing in April 2017 because the government in Sri Lanka had changed and there was a new President in power. In response, the appellant said, in substance, that the Rajapkse family remained powerful even if not in power as part of the government. The implication being that Mr Gotabhaya Rajapske remained in a position of sufficient power and influence to give effect to his threat even if his brother were no longer President. The appellant submitted that the Tribunal failed to consider or give proper consideration to the remaining threat posed to the appellant whether or not the Rajapske family members formed part of the government and, also, to the realistic possibility of a future change of government and return to power of members of that family.

54    In my view, the appellant’s response to the inquiry of the Tribunal recorded at para [39] of the Decision Record does give rise to the implicit integers of the appellants claims for protection. Further, it is not evident on the face of the Decision Record that the Tribunal considered or gave real and genuine consideration to those integers of the appellant’s claims. However, any failing of the Tribunal to consider or properly consider that integer of his claim was not material because the Tribunal had rejected the appellant’s claim that Mr Gotabhaya Rajapkse had made any threat to kill the appellant at para [59] of the Decision Record. Put another way, based on that conclusion, the extent to which members of the Rajapkse family were or were not members of the government or powerful figures of Sri Lankan society with the ability to cause harm to the appellant, could not have changed the outcome of the Tribunal’s review because the relevant claim, that he was exposed to the risk of harm due to the threat, was not accepted.

Ground 3

55    Ground 3 concerns the Tribunal’s findings and conclusions with respect to the claims referred to in sub-paragraphs [3 h)] to [3 m)] of the Decision Record. With respect to these claims, the appellant contends that there was no reasonable or proper basis for the conclusions of the Tribunal at paras [32], [53] and [66] of the Decision Record.

56    The parties appear to have proceeded on the common assumption in this case both before the primary judge and in the appeal that a legally unreasonable finding of fact, in the sense that the finding lacked evident, transparent and intelligible justification, may result in jurisdictional error of the Tribunal in the performance of its statutory review function under Part 7 of the Act. Accordingly, I have considered if and the extent to which the Tribunal’s findings of fact fall within the description of a legally unreasonable conclusion, outcome or decision.

57    Paragraph [32] falls within the section of the Decision Record (paras [7]-[43]) in which the Tribunal summarised the evidence and other information or materials before the Tribunal on the review. The paragraph identifies the appellant’s responses to questions of the Tribunal about his claims that he feared serious harm from the CID or the police if he were to return to Sri Lanka as follows:

32.     The Tribunal asked the applicant why he would be targeted by the CID or the police now or in the reasonably foreseeable future. He said there were three reasons. Firstly because he was mixing with Tamils, second because of his past conversations with the monks, and thirdly because of Roshan's allegations. The applicant told the Tribunal that he had purchased a return ticket and was going to stay in Sri Lanka for three or four weeks when he travelled there in March 2014, however he brought forward his return to Australia and departed on 25 February 2014. At the hearing, the applicant showed the Tribunal a copy of a ticket with Tiger Airways showing he was scheduled to leave Sri Lanka on 3 March 2014.

58    Paragraph [53] falls within the section of the Decision Record (pars [45]-[74]) dealing with the appellant’s claims and evidence and contains the Tribunal’s conclusions about his claims that he was arrested by the police and interrogated and mistreated by the CID as follows:

53.    Having regard to all the evidence, and to the Tribunal's finding that the applicant was not involved in facilitating the release of Sivachenthuran, or of anyone else with LTTE links, the Tribunal does not accept the applicant's claim that he was arrested by the police as he claims to have been arrested, or that he was taken by the CID and interrogated and mistreated. It follows on the evidence before it that the Tribunal does not accept that either the police, or the CID, or anyone else, threatened to contact the applicant if the need arose as he claimed. As the Tribunal does not accept the applicant was in any way involved in facilitating Sivachenthuran's release, the Tribunal does not accept his claim that Roshan was arrested and tortured for reasons associated with the applicant or with the release of Sivachenthuran. It therefore does not accept his claim that Roshan told the Sri Lankan authorities that the applicant was involved in such a release, or told the authorities that the applicant was an LTTE or Tamil sympathiser. The Tribunal therefore does not accept his claim that his father approached a Sinhalese Minister Dumainda Dissanayake who released the applicant because it does not accept he has ever been detained.

59    Before expressing that conclusion, the Tribunal made the general observation concerning the credibility of the appellant’s claims referred to earlier at para [21], the Tribunal had also rejected the appellant’s claims with respect to the release of Sivachenthuran referred to earlier at para [22].

60    After expressing that conclusion, the Tribunal dealt with and rejected the appellant’s claims and explanations concerning him being the subject of attention, detention or harm in the period immediately before his departure to Australia and when he had returned to Sri Lanka referred to earlier at para [23]. The Tribunal then dealt with and rejected the appellant’s claims relating to his travel to Sri Lanka in 2014 and claim that the Sri Lankan authorities required him to return to Sri Lanka to renew his passport as a pretext to detain and interrogate him referred to earlier at paras [50]-[54] and addressed as part of grounds 1 and 2.

61    After considering and rejecting all the appellant’s claims the Tribunal considered, in para [66], whether the appellant would face a real chance of serious harm now or in the reasonably foreseeable future for reasons of his departure from Sri Lanka or on the basis of his returning as a failed asylum seeker and said:

66.    The Tribunal also considered whether the applicant would face a real chance of serious harm now or in the reasonably foreseeable future for reasons of his departure from Sri Lanka, or on the basis of returning as a failed asylum seeker. The Tribunal observes that the DFAT Country Information Report — Sri Lanka — 24 January 2017 does not suggest that a person in the applicant's circumstances will be targeted for serious harm for reasons of having travelled to and having remained in Australia for an extended period of time such as the applicant has. Nor does that country information suggest he will face a real chance of serious harm for having applied and failed to claim asylum in Australia. The Tribunal accepts that if he returns to Sri Lanka without a current passport, as it is likely he will do so in light of his attempts to renew it, he will be questioned by the relevant authorities upon his arrival at the airport in Colombo. There is no evidence before the Tribunal to suggest there are any outstanding warrants for the applicant's arrest or that he is wanted or suspected for any criminal activity. The Tribunal does not find there is a real chance of serious harm befalling the applicant while he is being questioned upon his arrival in Sri Lanka, and finds that after his identification is established by the authorities he will be permitted to move on and return to his home. Further, the Tribunal finds that as the applicant departed Sri Lanka using his own passport and in a manner not in breach of the Immigrants and Emigrants Act of Sri Lanka, he will not be charged with illegally departing Sri Lanka.

62    In the appellant’s written submissions filed after the oral hearing, he focussed on para [53] of the Tribunal's reasons and submitted that the paragraph contains a series of cascading adverse findings rejecting the appellant’s claims that he was arrested by the police or interrogated and mistreated by the CID, the authorities had not threatened to contact the appellant if the need arose or that Roshan had informed on the appellant for his role in the release of Sivachenthuran. The appellant submitted that each of these conclusions was reached without proper evidence.

63    Having regard to the Decision Record as a whole and the analysis of the evidence and conclusions the Tribunal expressed regarding the evidence before and after the conclusions in para [53], I do not consider that the appellant has demonstrated that the conclusions are legally unreasonable. The appellant has not identified any specific legal error (such as a failure to take into account a relevant consideration or failure to disregard an irrelevant consideration) in the Tribunal’s process of reasoning that would render the conclusions unreasonable. Nor is the outcome (the ultimate conclusion), in context, one that manifestly sits outside the range of conclusions that the Tribunal could reach on the evidence available to it such that error of a jurisdictional kind may be inferred.

Conclusion

64    The appeal will be dismissed with costs.

Associate:

Dated:    6 June 2023