ASD21 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2022-08-17|Before: O'Sullivan J

The appeal is dismissed.
The appellants pay the first respondent's costs of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

introduction 1 The appellants are Sri Lankan nationals of Tamil ethnicity. The first and second appellants are husband and wife, the third and fourth appellants are their children. 2 On 15 June 2022, the Court ordered the first appellant be appointed as the litigation representative of the third and fourth appellants. 3 The family claims it fled Sri Lanka in fear of harm because of a familial association with the organisation known as "Liberation Tigers of Tamil Eelam" (LTTE). It also claims fears as a result of having departed Sri Lanka illegally and if returned, would be returning as failed asylum seekers. 4 The family first arrived in Australia on 23 April 2011 as irregular maritime arrivals. 5 They were initially found to be owed Australia's protection, however legislative amendments in December 2014 prevented irregular maritime arrivals from obtaining the grant of a permanent protection visa. 6 On 17 February 2016, they lodged an application for a Safe Haven Enterprise (Class XE) Visa (Visa) on the basis that the first appellant experienced harm in Sri Lanka and feared future harm from the Sri Lankan authorities if returned. 7 On 31 July 2017, a delegate of the Minister (Delegate) refused to grant the appellants a Safe Haven Enterprise (Class XE) (Subclass 790) Visa. On 31 August 2017, the first appellant sought a merits review of the Delegate's decision in the Administrative Appeals Tribunal (Tribunal). The first appellant was the applicant and the second, third and fourth appellants were secondary applicants. 8 By a decision dated 22 February 2021, the Tribunal affirmed the Delegate's decision not to grant the appellants Visas. 9 The appellants applied for judicial review of the Tribunal's decision before the Federal Circuit and Family Court of Australia pursuant to s 476 of the Migration Act 1958 (Cth). On 2 November 2021, the appellants' application for judicial review was dismissed and it is from that dismissal that they now appeal to this Court.

Notice of appeal 10 The appellants rely upon a supplementary notice of appeal filed 24 December 2021. The supplementary notice of appeal differs only from the original notice of appeal filed 30 November 2021 by the inclusion of an application for an extension of time within which to file the notice of appeal.

Extension of time 11 The application for an extension of time is supported by the affidavit of Sean Noel Kikkert sworn 12 April 2022 and filed on 15 April 2022. 12 The original notice of appeal was filed one day out of time. The appellants submit there was good reason for the delay in filing the notice of appeal in that the document was initially filed on 29 November 2021 in the Victoria Registry of the Court but was rejected. It was refiled on 30 November 2021 at which time it was one day out of time. There is no suggestion of any prejudice suffered by the Minister and the Minister accepts there is an arguable case. 13 The Minister does not object to an extension of time being granted.

Consideration 14 In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]-[21], Perram, Farrell and Perry JJ said: 20. The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established and are underpinned by a consideration of where the best interests of justice lie. Those principles may be summarised as follows. (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The length of the delay is a relevant factor. (3) The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time. (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. (See e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.) 21. As to the fifth of these matters, the proposed grounds should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). 15 See also SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (Cowdroy J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ); AYB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 442 at [30] (Markovic J). 16 I am satisfied that it is in the interests of justice to grant an extension of time within which to file a notice of appeal and an order will be made accordingly.

Ground of appeal 17 There were three grounds of review advanced before the primary judge. Ground 3 was that the Tribunal fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable. 18 There is one ground of appeal in this matter which is that the primary judge erred in finding that the Tribunal's decision was not so irrational as to be legally unreasonable.

The primary judge's reasons (R) 19 In his reasons, the primary judge summarised the Tribunal' s reasons in some detail, noting the Tribunal set out the relevant background together with relevant law and policy: R at [5]-[26]. That background, relevant law and policy are not in dispute and I do not repeat them. 20 Relevant to this appeal, the primary judge observed that before the Tribunal the first appellant gave a history of being tortured by Sri Lankan authorities during the period December 2010-January 2011 on the basis of him being an LTTE sympathiser. His Honour noted the first appellant's claim that in or about January 2011 he was taken by members of the Sri Lankan authorities to a military camp where he was undressed, hung upside down and whipped with a thorny stick. He was placed into a septic tank into which rats were introduced such that he was bitten all over his legs by the rats. Subsequently he was electrocuted: R at [10]-[11]. 21 The primary judge also noted the first appellant's claim that after being released, he was ordered not to leave home and that the next time the authorities came it would be worse. In March 2011, the Sri Lankan authorities came to the first appellant's home and took his identity card. His Honour notes the first appellant's claim that this is when he decided to leave Sri Lanka, ultimately leaving on 23 March 2011 to come to Australia with his brother: R at [12]. 22 The primary judge also observed that before the Tribunal, the second appellant stated she left Sri Lanka as the first appellant had been persecuted because of an assumed association with the LTTE by way of the first appellant's brother: R at [13]. 23 The primary judge referred to [26] of the Tribunal's decision where the Tribunal noted the Delegate raised concerns as to the first appellant's credibility, most particularly in respect of the claim that he fled Sri Lanka in March 2011, when at that time the appellants resided in India before coming to Australia. His Honour also referred to the absence of documentation that would indicate the family resided in Sri Lanka; that the appellants had no birth certificates relating to the children; no marriage certificate; and no national identification card for the first appellant: R at [14]. 24 The primary judge referred to the medical evidence before the Tribunal and the reference to scarring on the first appellant's body: R at [15]-[16]. 25 The primary judge noted the Tribunal's consideration of various documentary and other evidence given to the Tribunal, referring to [43] of the Tribunal's decision where it referred to evidence that the first appellant stated he was in India for about eight months prior to coming to Australia. That was a relevant issue in the sense that if the first appellant had been in India for eight months prior to coming to Australia he could not have been arrested and tortured in Sri Lanka during that same period. The primary judge also noted the first appellant claimed that there was an error in his evidence with the year being 2009 not 2010: R at [17]. 26 His Honour referred to various pieces of country information relied upon by the Tribunal, observing the Tribunal noted information that it was most likely that upon their return, the first and second appellants would be charged with leaving Sri Lanka illegally, would be detained at the airport and be placed before a Magistrate where, if they plead guilty, they could expect to be fined and released. The primary judge noted that part of the country information before the Tribunal was that whilst there was credible information as to torture being committed by Sri Lankan authorities, the risk of mistreatment now in Sri Lanka was moderate and the risk of torture low. Returning as a failed asylum seeker would not, of itself, attract an adverse profile with the authorities unless the person was a high profile LTTE cadre: R at [19]-[21]. 27 The primary judge referred to the Tribunal's findings commencing at [64] of the Tribunal's decision. His Honour noted the Tribunal accepted that all of the appellants are of Tamil ethnicity but that did not alone give rise to a well-founded fear of persecution. His Honour also noted that the Tribunal: (1) Did not accept the first appellant will be imputed with LTTE associations due to familial ties; (2) Did not accept the involvement of the first appellant's brother with the LTTE; (3) Did not accept the first appellant suffered harm at the hands of Sri Lankan authorities by reason of a claimed association with the LTTE; (4) That on the very specific dates the first appellant claimed to have suffered harm, it had been confirmed independently that the first appellant was residing in India; (5) Noted the medical evidence as to scarring and the fact that the evidence indicated this could affect the first appellant's capacity to give evidence, but nonetheless determined that the medical evidence of scarring, was not determinative of torture by Sri Lankan authorities; and (6) Finally, the Tribunal was not satisfied that the first appellant's scarring would result in him being imputed with an LTTE profile by authorities on return to Sri Lanka: R at [22]-[25].

The parties' submissions before the primary judge 28 The primary judge set out the submissions of the appellants and the first respondent: R at [28]-[37]. Insofar as ground 3 of the application for judicial review was concerned, his Honour summarised the applicants' submissions in the following terms: R at [36]-[37]: 36 In relation to ground three, it was submitted that the Tribunal fell into error in that its decision lacked an evident and intelligible justification, and in so doing exhibited legal unreasonableness: (see; Minister for Immigration and Border Protection v Li (2013) 249 CLR 332). 37 A fundamental claim in the applicants' case is that the first applicant was tortured at the hands of Sri Lankan authorities and fears for his safety if returned. The medical evidence was that the first applicant's injuries and illnesses, both mental and physical, were consistent with the list of events described by him. It was submitted that it was legally unreasonable for the Tribunal to give no weight or consideration to the evidence put forward by the first applicant or come to the opinion that the trauma experienced by the first applicant did not occur. Not only did the Tribunal refuse to accept these events, the Tribunal failed to justify its reasoning by providing an alternative explanation as to the scars and injuries on the first applicant's body. In so doing, the Tribunal failed to provide an intelligible justification for its reasoning.

The primary judge's consideration 29 In considering the application for judicial review, the primary judge referred to well-settled principles that the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451], nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not made out (see: Deluadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at [348]), it being for the applicant to satisfy the Tribunal that they meet the criteria for being a refugee: Abebe v Commonwealth of Australia [1999] HCA 14, (1999) 197 CLR 510 at [187]: R at [41]. 30 His Honour noted the test for legal unreasonableness as being stringent and only arising in rare cases, referring to Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 297 ALR 225 at [108], [113] (Gageler J). 31 The primary judge dealt with grounds 2 and 3 of the application together, reminding himself that the application was one for judicial review and was not an impermissible review of the merits: R at [40], [43], [48], [57]. 32 His Honour noted the Tribunal did not find that the presence of scarring on the first appellant, as described by the medical evidence, was determinative of torture at the hands of Sri Lankan authorities. The primary judge was satisfied the Tribunal gave genuine and realistic consideration to the medical evidence; accepted the appellants suffered from trauma, stress and anxiety, but rejected that it was determinative, in itself, of evidence of torture at the hands of Sri Lankan authorities: R at [49]. 33 His Honour noted that the Tribunal cautioned itself as to the issue of the capacity of the appellants to provide evidence, due to the impact of stress, trauma and anxiety. The Tribunal also considered the issue of the inconsistency in the timing when the alleged torture took place, giving weight to the claim by the first appellant that the torture occurred at a time when investigations by Australian authorities indicated he was in India: R at [49], [51]. 34 His Honour concluded that the Tribunal correctly referred to country information to assess the risk to the appellants if they were to be returned in relation to each of the claims they had made, including their ethnicity; imputed LTTE Association; returning as failed asylum seekers; and being illegal departees from Sri Lanka. 35 On that basis, although his Honour postulated that another Tribunal, given the evidence, may have applied a different reasoning process and arrived at a different conclusion, that was not sufficient to ground a finding of illogicality or irrationality, provided the conclusion was available on the evidence. His Honour was not satisfied that the stringent threshold for legal unreasonableness had been met: R at [56]-[57].

The submissions on appeal 36 The appellants' submissions (AS) rely on a number of factors which, they submit, when taken together demonstrate irrationality or illogicality such as to amount to legal unreasonableness. 37 The first matter the appellants rely upon, is that the primary judge referred to an issue about the precise citizenship of the first appellant: R at [53], yet the Tribunal in its reasons at [72] (Court Book (CB) 704) had given the appellant the benefit of the doubt and found the first appellant to be a citizen of Sri Lanka: AS at [16]. 38 The appellants submit that once that had occurred, it was not possible for defects in the first appellant's case for citizenship to be used to undermine the credibility of the first appellant's claim of torture in Sri Lanka: AS at [18]. 39 That may well be but it is not what happened. It is clear that the primary judge did not use any issue concerning the first appellant's citizenship as a basis to undermine the first appellant's claim of torture. The two issues were quite separate. In the primary judge's reasons at [53], his Honour was referring to the Tribunal cautioning itself as to the capacity of the appellants to provide evidence due to the impact of stress, trauma and anxiety. His Honour observed that it may be implied that in the Tribunal's mind, the stress, trauma and anxiety did not explain either the clear timing inconsistency as to when the alleged torture took place, nor the issue of the first appellant's citizenship. 40 The second matter the appellants rely upon is that the first appellant's claims of torture were supported by medical evidence showing that he had scarring consistent with torture and further that he suffered psychological and post-traumatic stress disorder, consistent with mistreatment. The appellants referred to the medical evidence of the scarring and the fact that the Tribunal had accepted the medical evidence: AS at [19]-[20]. 41 However, the appellants seek to take the matter a step further by submitting that the medical evidence reveals torture by Sri Lankan authorities: AS at [21]. That submission suffers from the same problem that the first appellant was in India at the time the alleged torture took place. 42 The third matter the appellants rely upon is the country information. They submit that the country information stated that individuals with war-related scarring are more likely to come to the attention of the authorities, the risk of mistreatment of detained individuals is moderate and the risk of torture is low: AS at [23]-[24]. On that basis, the appellants submit that it is difficult to see how the Tribunal could accept these matters without there remaining a real chance the first appellant would suffer serious harm should he return to Sri Lanka. 43 The respondent submitted that the Tribunal set out in considerable length the country information, including the issue of war related scarring at [59] of the Tribunal's reasons (CB 700), before reaching its conclusion at [87] of the Tribunal's reasons (CB 706) that the Tribunal was not satisfied that the scarring identified was specific to war events or torture and would therefore not result in the authorities perceiving the first named applicant to be associated with the LTTE. 44 The fourth matter the appellants rely upon which also concerns country information, is that returning failed asylum seekers come to the attention of the authorities and will likely be detained: AS at [26]. The primary judge dealt with that issue and the Tribunal's consideration of that issue at R [19]. 45 The appellant submits that the primary judge failed to address the Tribunal's treatment of the cumulative effect of the factual matters it has identified above. On that basis, it submits it was so irrational and/or illogical as to be legally unreasonable that there was not a real chance that the first appellant would suffer serious harm due to an imputed connection to the LTTE should he be returned to Sri Lanka.

Consideration 46 In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, 647-648 at [130], [131] (Crennan and Bell JJ) on the question of illogicality and irrationality in the context of administrative decision-making said: 130 In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. 131 What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. 47 In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1 at [33]-[35] (Allsop CJ, Besanko and O'Callaghan JJ) the Full Court set out a number of principles in relation to illogicality, irrationality and unreasonableness: 33 The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647-650 [130]-[135]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 517-518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142]. 34 The task in assessing illogicality is not an exercise in logical dialectic. "Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case": SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes. 35 Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20-21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious. 48 In this matter, the primary judge found the Tribunal considered the material put before it, including the submission that the first appellant's scarring may cause him to be of heightened interest. Although the Tribunal accepted the evidence of scarring, the Tribunal was not satisfied as to the cause of that scarring given the doubt cast upon the first appellant's claim of torture by Sri Lankan authorities when the first appellant was in India at the time of the alleged torture. 49 The primary judge observed, correctly with respect, that it may be that another Tribunal may have applied a different reasoning process and arrived at a different conclusion, however that is not sufficient to ground a finding of illogicality or irrationality. His Honour was not satisfied that the conclusion reached by the Tribunal was one which was not possible on the material before the Tribunal, such that the Tribunal's decision was not legally unreasonable: R at [56]-[57]. 50 His Honour was correct to so find. 51 The appeal must be dismissed. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.

SCHEDULE OF PARTIES ACD 99 of 2021 Appellants Fourth Appellant: ASG21

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