AYQ18 v Minister for Home Affairs [2019] FCA 1751 | Case summary

ABRAHAM J: 1 The appellant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 29 April 2013. He applied for a Safe Haven Enterprise Visa (SHEV), on 4 July 2016 which was refused by the Minister's delegate on 6 June 2017. On 8 February 2018 the Immigration Assessment Authority (the Authority) affirmed that decision. This is an appeal from an order made by the Federal Circuit Court of Australia on 19 March 2019 dismissing an application for judicial review of the decision of the Authority. 2 The appellant seeks leave to amend the notice of appeal and to rely on two grounds not raised in the Court below. 3 Those grounds are as follows (with any errors contained in the original): 1. The IAA failed to consider important evidence regarding the applicant's continued reporting obligations at the time that he fled from Sri Lanka. 2. The primary judge erred in not quashing the decision, albeit or reasons that were not advanced to it, on the basis that the decision of the IAA is affected by jurisdictional error because the IAA erred in that the reasoning of the IAA at Reasons [27] does not make sense, and is affected by illogicality, irrationality, legal unreasonableness or some other unidentified legal error. Particulars (a) There was no basis in the materials to suggest that the applicant having been required to report until 2012, which was accepted, was no longer true in 2013. (b) The IAA fails to disclose any intelligible basis for the distinction between accepting the former and rejecting the latter claim. Decision of the Authority 4 The appellant's claims were accurately summarised in the Court below as follows: 4. The applicant applied for a Safe Haven Enterprise Visa on 4 July 2016. The applicant's claims were set out in a statement accompanying the application. In summary, the applicant claimed: a. the Sri Lankan Army suspected the applicant's family of Liberation Tigers of Tamil Eelam involvement because his father bought a paddy from the LTTE; b. he was detained for 10 days and severely mistreated by the SLA in 2009 on suspicion of being an LTTE supporter and celebrating Prabakaran's birthday. On his release, he was subject to ongoing reporting obligations and during these monthly reports the applicant was severely mistreated by the SLA: he sustained injuries to his arms in 2011 and his finger nails were removed with pliers in 2012. The applicant was assaulted in 2013 by authorities and was still required to report to authorities when he left Sri Lanka in 2013; c. if he returned, he would be tortured again by the SLA or Criminal Investigation Division for not telling them he was leaving because they suspected he supported the LTTE because of the birthday celebration; d. he is a Tamil male, from the north (Jaffna), who left Sri Lanka illegally, and would return as a failed asylum seeker with a suspected LTTE profile; e. he would be questioned by the CID on return at the airport and would be persecuted and prosecuted for his illegal departure on the basis of his profile as a Jaffna Tamil male with suspected LTTE links; and f. he would suffer continually in detention until his family bail him out, and there was no one in Colombo to vouch for him or bail him out. 5 The appellant submitted new information to the Authority, three groups of which were accepted by the Authority as satisfying the requirements of s 473DD of the Migration Act 1958 (Cth) (Migration Act) namely: medical records relating to his treatment following his claimed mistreatment in Sri Lanka; a copy of a clinical history from a doctor in Sri Lanka following his claimed mistreatment by the authorities; and copies of attestations from the appellant's brothers stating that one brother travelled to Canada in 1995 and the other in 1996. 6 The Authority's reasons will be considered in more detail when addressing the two proposed grounds of appeal. 7 In summary, the Authority did not accept that the appellant's father's past business dealings with the LTTE led the authorities to suspect that his family was linked to, or supported, the LTTE, leading it to suspect him 20 years later. The Authority accepted that the appellant was detained for 10 days by the Sri Lankan Army in November 2009 and was severely mistreated; that the appellant had on-going reporting obligations following his release from detention in 2009 and that he was sometimes assaulted during these incidents; and as part of the ongoing reporting obligations the appellant may have been assaulted in 2011 and 2012, resulting in injuries to his arms and fingers. The Authority did not accept that the appellant was assaulted in 2013 by the authorities as he had claimed, due to inconsistencies in the presentation of the claim. It did not accept that the appellant had continuing reporting obligations as at April 2013 when he departed Sri Lanka. 8 The Authority concluded that the appellant did not meet the requirements of the definition of refugee under s 5H(1) of the Migration Act, and as such did not meet the requirement in s 36(2)(a), and he also was not entitled to complementary protection under s 36(2)(aa). Federal Circuit Court 9 The appellant sought judicial review of the Authority's decision in the Federal Circuit Court, advancing ten grounds of review, none of which are now relied on in this Court. 10 Consequently, it is unnecessary to consider the reasoning of the primary judge in relation to those grounds. Suffice to say the application was dismissed. 11 However I note, that although it was not a ground of appeal, the primary judge observed at [39]: 39. Having been tortured in the past on several occasions, it is understandable that the applicant holds grave fears as to what might happen on his return to Sri Lanka. The Authority did not accept that the applicant's fears are well-founded but, given that the applicant's mistreatment was much worse than is commonly the case with claimants from Sri Lanka, it is entirely possible that a different decision maker might have come to a different conclusion. Given that possibility, and the basic proposition that Australia should not expose a person to the risk of torture in a country where they have in the past been tortured, this case, in my view, merits consideration by the Minister. That is a matter beyond the scope of this proceeding. The Court's task is to deal with the grounds of review advanced in the amended application. Leave to appeal 12 The relevant principles for the grant of leave are well established and are summarised in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] where the Full Court said: In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38]. In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 13 The respondent opposed leave being granted on either ground, principally on the basis that the appellant was legally represented in the proceeding before the Federal Circuit Court, and that the arguments sought to be raised in this Court could have been raised below. The respondent submitted that this Court is not the trial court, and the practice of raising new grounds in this Court is contrary to the legislative scheme that limits the Court's jurisdiction, relying on AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14]. 14 Nonetheless, the grounds were fully argued, with the respondent adopting the approach that the grant of leave to rely on the new grounds of appeal was fundamentally dependent on whether there was merit in the new grounds advanced by the appellant. Consideration 15 There is some relationship between the two grounds, although the success of either is not dependent on the success of the other. 16 However, the evidence relied upon, and paragraphs of the Authority's reasons which were the focus of the arguments, are the same. Therefore, it is appropriate to first set out that evidence relied on. This evidence concerns two issues: first, the ongoing reporting obligation claimed by the appellant to have been continuing at the time he left Sri Lanka in 2013, and second, the February 2013 assault (although there was less emphasis or reliance on that latter aspect). 17 The evidence in support of both grounds was said by the appellant to be as follows. 18 First, at the biodata interview on 21 May 2013, in answer to the question "have you ever been arrested and/or charged with any offences?" the appellant's reply is recorded as follows: Yes by army - beaten and burnt with iron - spine is damaged. 2009. Also asked to come monthly to army camp and sign - be monitored. The form records that the interview commenced at 11:31am and was completed at 11:45am and involved a number of questions (at least twenty two questions). 19 Second, at the arrival interview on 28 June 2013, recorded under the question "why did you leave your country of nationality or country of residence?", is information elicited by a series of questions which included the following: Has anything happened since 2009? Yes. The army and CID would ask me to report to them by signing documents. I have to report at least once a month. At times I was assaulted. I sustained injuries under my arm from a beating and they used pliers to press the middle finger of my left hand. That was in 2011 and 2012. Has anything else happened since? I was beaten again in February 2013 I note also that in response to the question "Have you ever been arrested or detained and/or charged with any offences?" the appellant replied "Taken into custody by army or CID 2009, 2011, 2012, 2013. Never charged". 20 Third, in the appellant's list of claims accompanying his SHEV application dated 30 June 2016, relevantly was the following (with any errors in the original included): 9. On 26 November 2009 I was taken by the Army. I was held for 10 days in the Army camp. I was beaten and they told me that I had to inform them if I was going anywhere I needed their permission. 10. In 2011 there is a slip of bone in my arm due to the Army's torture. 11. In 2012 the Sri Lankan Army pulled my finger with a plier. They took me and they beat me. If anything happened in my place the Army beat us severly. 12. The Army informed me to go to the camp at Orelu base camp. I was kept from morning to afternoon in the camp. I would go in the morning and be sent back in the afternoon. 13. Tamils were getting abducted again. After the LTTE's leader's son was killed. Tamil people were getting kidnapped again. Arulmahinthan was missing whom I knew in the Army camp. 14. I had to report to the army camp one day per month. I was asked to sit down. and they said to me their boss was not there. After their boss came they would get my signature in a ledger. They were just ticking my name off and I signed. 15. On three separate occasions, I was severally tortured that has resulted severe injuries but many times I have been beaten by the Army. 16. I have not informed them before coming here, they will torture me again before killing me. They will severely torture me by plucking by nails. I have not informed them before coming so I think there will be a problem. The Army's suspicion on me due the birthday celebration has been ongoing and they have been tracking me for a long time. … 21. In 2009 there were 2 other occasions I sustained injuries to my arm and fingers when I was required to report to the camp. … 30. These are my main elements of my Convention claims and I will provide independent country information on Sri Lanka and supporting evidence to support my claims and I will provide details of my claims during my interview. This statement was explained to me in Tamil. 21 Fourth, in the appellant's SHEV interview with the delegate on 9 February 2017, the following exchange occurred. The audio recordings of the interview were before the Authority, however were not included in the material filed in these proceedings. The appellant adduced an excerpt of the transcript from the SHEV interview which contained the following exchange. There was no objection by the respondent to this evidence being adduced: So, you needed to go and report to the army once every month. For how long? They did not tell a time limit. When you left Sri Lanka, at the time you left Sri Lanka, did you have to report… [interrupted by witness…] Yeah …did you have to? Yes 22 The submissions of the parties primarily focussed on paragraphs [25] and [27] of the Authority's reasons. However, those paragraphs must be read in their proper context and therefore it is appropriate to recite those paragraphs together with relevant paragraphs which preceded those conclusions. 23 The Authority concluded as follows (citations omitted and any errors included in the original): 14. The applicant claims that on 26 November 2009, while celebrating his mother's birthday at his place with friends, on the same day as that of the LTTE leader Prabakaran, he was taken into custody by the army and beaten and a hot thing was used to burn his back. As a result he suffered from a slipped disc in his lower back and neck. He was detained in Jaffna for 10 days. He was accused of celebrating Prabakaran's birthday and being in the LTTE. After 10 days he was returned home but told he needed to seek their permission before leaving. He also had monthly on-going reporting obligations. In both his biodata and arrival interview the applicant mentioned he was celebrating his mother's birthday on 26 November 2009 and that he was detained for 10 days and accused of being in LTTE member. 15. In support of his claims he provided a number of documents. These include his birth certificate which states his mother's birthday is 26 December 1954. While the delegate queried this date during the SHEV interview given it states 26 December, not November, the applicant said this was due to an administrative error and subsequently provided the delegate with a number of other documents which consistently state his mother's birthdate is on 26 November. I accept his mother was born on 26 November. 16. The applicant also provided a copy of a letter from a member of parliament dated 2 May 2016. The writer does not claim to have first-hand experience of the applicant's claimed detention and harassment by the army, which happened some seven years prior to him writing the letter, and I place little weight on it. 17. The applicant also provided a copy of the Sri Lankan clinical history dated 20 June 2017. The clinical history is printed on what appears to be a genuine colour letterhead and bears what appears to be an official stamp with the doctor's name, registration number and signature. The doctor states that the applicant has been his patient for many years and that on 6 December 2009 he presented at his medical clinic with a large deep burn on his upper back and bruises and lacerations on the skin of his lower back region along with severe pains along the entire spine from the neck down to his lower back. He states he had been told by the applicant that he had been beaten and severely mistreated by army personal in civilian clothing about 10 days earlier. This timing is consistent with the applicant's claims. It also states the army had taken him by van to an unknown place and severely mistreated him and that the injuries were consistent with his story of severe mistreatment. He also states that when he saw him the wound was infected and had an offensive odour with pus and that he was treated with burns dressings, antibiotics and pain medicine and that he was suffering from severe back pains for many months after the injury. Consistent with this the applicant provided copes of the Sri Lankan medical records dated March and December 2010. The medical records are printed on what appear to be genuine letterhead, some bearing stamps indicating the medical practitioner and signatures and are extremely crumpled and dog-eared. While mostly illegible they records appear to relate to post-injury care and investigation of the applicant's back injury. 18. At the SHEV interview the applicant said he was taken to an old house in Oralu near the camp. He also said his father and brother were not there (as they were working), that it was just his mother and his Tamil friends and that when he was released he was told he needed their permission to leave. The applicant said his mother had seven siblings in Jaffna who did not attend the celebrations. He said that while they lived in Jaffna they did not often visit them. When the delegate raised concerns about the fact that he was the only one detained, the applicant explained that his other friends were too scared to go outside and he was the first one outside and that that was why he was the only one detained. He said he was assaulted the first day and then spent the following nine days lying down as he did not have the stamina to wake up or stand up and that he was only given water during this time. He confirmed no one spoke to him, questioned him or explained to him why he was being detained during those 10 days. He said at the time he just kept screaming and saying he was celebrating his mother's birthday. When pressed by the delegate he said that when they released him, they drove him in the same white van, pushed him out near the gate to his home and told him they would call him again and that he had to get permission to leave. 19. The applicant claims as a consequence of his beating, he cannot look up or sit up easily and he continues to have stiffness in the lower part of his body. He takes medication for these on-going medical issues. He has received treatment in Sri Lanka and had surgery in Australia to correct an arm injury. He provided a copy of a letter from a doctor from a Sydney medical centre dated 7 February 2017, stating that the applicant has been a patient since 2013. It goes on to state "he [the applicant] claims to have fled from Sri Lanka by boat after having undergone torture by the armed forces. He was apparently arrested by the armed forces during the Sri Lankan ethnic conflict for being a terrorist supporter and was repeatedly tortured. He has showed me a large burns scar on the upper back which he claims was due to a large burn sustained when the security forces used a possible hot iron box and burnt him. The injury is consistent with a burn scar. He also showed his left 3rd and 4th fingers which were apparently pulled by plier by the security forces and he has sustained injury to his nails and the distal pulp of the fingers. Examinations show evidence of scars from it consistent with the story. He has been suffering from severe lower back and neck pains which he claims started after he was beaten up by the armed forces and scans done in the past showed disc prolapses. He continues to suffer from severe back and neck pains. He also had a bony growth on his right upper arm which he claims developed after being beaten up. It was causing pain with arm movements and it was removed after he came here by a surgeon". The letter attests to the fact that the burn on his back and that the damage to his fingers are consistent with his claimed mistreatment. The damage to the fingers and the arm appear to relate to a later incidence of claimed mistreatment by authorities which is discussed below. 20. Relevant country information reports that immediately after the war Sri Lankan authorities subjected a large number of civilians suspected of LTTE-links to screening, monitoring and arbitrary, sometimes prolonged, detention without charge in an effort to thwart anti-government sentiment or the re-emergence of the LTTE. There was also a huge army presence in Jaffna at that time and it was commented in the available country information that there was a potential for the army to abuse their power there being no effective system of checks and balances, such as independent monitoring and that random checks were often carried out, especially on young people, at that time. 21. Based on the totality of the evidence before me, including the consistency of his claims both internally and with the documentary evidence and country information I am willing to accept the applicant was detained for 10 days by the army or persons connected with the army on 26 November 2009 and mistreated. 22. The applicant claims that from 2009 to 2012 as part of his reporting obligations he was often detained for the day, but not the night and he was often beaten. He claims that when reporting to authorities in about November 2011 he was so severely mistreated that the bone from his arm protruded. He also claims that when reporting sometime in 2012, his finer nails were removed with pliers. He also claims that he was beaten in 2013 and that when he left he still had reporting obligations. 23. The applicant has consistently mentioned having on-going reporting obligations and being assaulted on occasion in connection with this. In the SHEV interview the applicant said he had to report to Oralu army base and that when he went there they would tell him the boss was not there and then when the boss came they would get his signature but they would often assault him. I accept the applicant had on-going reporting obligations after being released and was sometimes assaulted during these incidents. The applicant has consistently mentioned an injury to his arm in 2011 and pliers being used to damage the middle finger of his left hand in 2012 while reporting. When asked if had ever been charged for any offences he said he had not. 24. The applicant provided copies of documents in support of his claim. As well as the letter from the doctor in Sydney, he provided medical records regarding his surgery to his arm undertaken in Australia. The Sri Lankan clinical history also states his injuries are consistent with his claimed mistreatment and his Sri Lankan medical records, while not evidence of his claimed mistreatment do corroborate his claim he had received treatment for injuries after November 2009 (in 2010). While the applicant did not provide much detail about his claimed mistreatment in 2011 and 2012 during the SHEV interview I consider this may be due to difficulties of recall associated with the experience of past trauma which I accept the applicant has suffered. On the totality of the evidence, I am willing to accept that as part of his on-going reporting obligations the applicant may have been assaulted in 2011 and 2012 resulting in injuries to his arm and fingers. 25. The applicant did not mention being assaulted in 2013 in his SHEV application, although he did refer to it in the arrival interview. In the SHEV interview when the delegate raised concerns about the fact that the applicant had not fled Sri Lanka until April 2013 given the claimed assaults occurred much earlier in 2011 and 2012, the applicant said that before he fled Sri Lanka in 2013, "they came in the van and they were trying to kidnap the people (not myself) who were reporting at the camp like I was doing. So these things are happening to them and tomorrow it may happen to me…and so I fled the country and came here only to save my life." The applicant did not mention his claimed 2013 assault. I accept the applicant had reporting obligations, may have been assaulted on occasion in the course of reporting. However, given the extreme lack of detail surrounding the claim, that it was inconsistently raised and not mentioned in the SHEV application or interview, I do not accept the applicant was assaulted in 2013. 26. For the first time in the SHEV application the applicant stated that "A", who he met in the army camp, disappeared. No further details were provided in respect of this claim (other than a general claim that people disappeared in Sri Lanka) including the date of the disappearance. It had also not been mentioned earlier and was not mentioned again. I do not accept this claim. 27. The applicant did not mention he had on-going reporting obligations as at the date of his departure, April 2013, in the biodata or arrival interviews. In the SHEV application he claimed that as he had left without informing the authorities they would mistreat him before killing him, however, I consider that this does not necessarily indicate he had on-going reporting obligations. It was in the SHEV interview, when the delegate specifically asked the applicant if he still had on-going reporting obligations when he left Sri Lanka that the applicant first said he did. I accept the applicant may have been assaulted by authorities in 2011 and 2012. I do not accept the applicant was assaulted by authorities in 2013. I consider it implausible that the applicant would continue to have to report to the army in 2013 so many years after his release especially given the short duration of his detention and the nature of his purported "crime". While I accept he had on-going reporting obligations after his detention which may have continued until 2012 I do not accept the reporting obligations extended into 2013. 24 Against that background I turn to the proposed grounds of appeal. Ground 1: failure to consider evidence 25 This ground is framed as a failure by the Authority to consider important evidence regarding the appellant's continued reporting obligation at the time he left Sri Lanka. In the appellant's oral submission this important evidence was identified as what the appellant said in the biodata and arrival interviews and what he said in his SHEV statement (recited at [18], [19] and [20] above). The appellant also made a complaint about the Authority's treatment of the claim in relation to being assaulted in February 2013, although as noted above, that was of less focus in the submission. Further, it was submitted that the Authority did not consider properly the evidence before it, which was expressed in an ongoing way. The appellant relied on Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 per Robertson J in which at paragraph [112] his Honour states that "[i]n 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". 26 The appellant submitted that the Authority did not consider the claim that he was reporting in 2013 because it stated that the first time that the appellant said the reporting condition existed at the time he departed Sri Lanka was in the SHEV interview. The appellant submitted that while it was stated expressly in answer to a question in that interview, on the material before the Authority, the claim had been made from the outset. For example, the appellant submitted that the original statement in the biodata interview was expressed in an ongoing way, and that was not considered by the Authority. 27 The appellant submitted that his case was indistinguishable from the decision of the Full Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 (AVQ15). The respondent submitted that the circumstances of this case were different to those in AVQ15 and that the type of jurisdictional error considered in that case does not arise in this matter. 28 The respondent submitted that the answer in the biodata interview, while not indicating that the obligation had ceased, did not indicate that it had not ceased. The respondent contended that to the extent that different interpretations might be made of the biodata and arrival interviews, it does not establish that the finding was not open to the Authority to make. The respondent noted that the appellant accepts that the first time the reporting obligation was expressly stated to be an existing obligation at the time he left Sri Lanka in 2013, was in the SHEV interview. In that context the respondent submitted that was consistent with the Authority's reasons, that the Authority expressly stated that was the first time that the appellant had expressly made that statement, and therefore the Authority did not fail to grapple with the claim. The respondent also submitted that the appellant had not mentioned having been beaten in 2013 in his SHEV application. The respondent also submitted that the Authority at [25] placed significance on the fact that when questioned by the delegate regarding his reasons for leaving Sri Lanka in 2013, the appellant did not refer to a beating having occurred, but to being fearful of being kidnapped like others were. 29 The respondent's submission that this case is distinguishable from AVQ15 must be accepted. In that case, the Court found that the Tribunal's finding of inconsistencies in the appellant's evidence, which underpinned its adverse assessment of the appellant's credibility, overlooked significant information which was before it and which potentially put a different light on the findings: AVQ15 at [29]. Material to the Court's finding of jurisdictional error was that "[i]nexplicably, in its reasons for decision the Tribunal made no express reference to the transcript of the interview", which contained relevant information that could have affected the Tribunal's findings. However in this case, as the respondent contended, the Authority did expressly refer in its reasons to the information and claims raised by the appellant (outlined in [18], [19] and [20] above), pointing to paragraphs [25] and [27] (recited at [23] above) as demonstrating that the relevant sources of information and the appellant's claims were referred to and taken into account by the Authority. A reading of those paragraphs shows that to be correct. Whether the Authority mischaracterised that evidence or claims, or made unreasonable findings in relation to them, is a separate question which does not properly fall within the type of jurisdictional error, being a failure to consider relevant material, which arises in AVQ15. 30 This ground, as drafted, is problematic. As the respondent submitted, on the face of the reasons the appellant's claims to be subject to reporting obligations when he left Sri Lanka, and the 2013 assault, were considered by the Authority. The appellant's argument appears to be that the Authority did not properly consider the evidence, including in the biodata interview, and so the Authority did not properly consider that his claims were made from the outset. 31 The appellant's submission of a failure to consider the evidence that he had claimed his reporting was ongoing, is based on the Authority's finding that there was a late raising of a reporting obligation in 2013, which relates to the statements at the outset of paragraph [27]. The reasoning process that there was a late raising of the reporting is based on the Authority's conclusion in the first sentence, that there was a failure to refer to ongoing reporting obligations as at the date of his departure in the biodata and arrival interviews. 32 As the appellant correctly submitted, the appellant's claim in relation to reporting was never stated in relation to a specific time period or date. Consistently, the appellant had not specified a time period during which the monthly reporting took place. Importantly, the appellant did not state that the obligation had ended. 33 The Authority appears to have assumed, without any consideration, that it was necessary for the appellant in the biodata and arrival interview to expressly state the detail that the monthly reporting obligation was ongoing as at the time he left Sri Lanka, and that the failure to do so necessary implied it was not. An applicant in the position of the appellant would not necessarily appreciate that it is necessary to add that it was still the case at the time he left. Bearing in mind the caution to be exercised by decision-makers in relation to statements made at entry interviews (here the bio data interview), in the context of this case, the claim that he had reporting obligations when he left in 2013 may be "encompassed" within his original claim in that interview, that he was subject to monthly reporting obligations: Minister for Home Affairs v AYJ17 [2019] FCA 591 at [42]; MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 at [56]; and see DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160 at [32]. 34 It should also be noted that the Authority's treatment of the various interviews appears to give rise to some inconsistency. For example, at paragraph [23] the Authority had accepted that the appellant consistently mentioned having on-going reporting obligations and being assaulted on occasion in connection with this. Further, the Authority had accepted that the reporting obligations may have existed in 2011 and 2012, and that he may have also been assaulted during that time, despite the fact that neither the existence of the reporting obligations in 2011 and 2012 (as the appellant did not state them in relation to a time period), nor the assaults, are referred to in the biodata form. 35 These observations might be said to raise issues of unreasonableness, illogicality or irrationality in the reasons of the Authority, however as these issues were not raised in this ground as argued, it is unnecessary to consider this any further. The reasoning reflects that the relevant evidence was considered by the Authority. While the appellant linked the evidence of the reporting obligation with the evidence of an assault in 2013, the two are not necessarily interdependent, and the Authority addressed the topics separately. Contrary to the assertion in the ground of appeal, the Authority did consider the evidence in relation to the 2013 reporting obligation and the assault. The complaint may be more appropriately characterised as one in relation to the interpretation of that evidence, and the Authority's consideration of it. Any errors in that reasoning cannot be said to properly fit into the type of jurisdictional error in AVQ15, being a failure to consider important material. This ground is not made out. Ground 2: legal unreasonableness 36 In this ground, the appellant challenges the Authority's conclusion in paragraph [27] (the full paragraph is extracted at [20] above), which is as follows: While I accept he had on-going reporting obligations after his detention which may have continued until 2012 I do not accept the reporting obligations extended into 2013. 37 The appellant submitted that this finding was unreasonable in the Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) sense, that it lacked an evident and justifiable justification, that there was nothing in the evidence for drawing the distinction between 2012 and 2013 and that it was not explained in the Authority's reasons. It was submitted that this is particularly so bearing in mind that the appellant left the country in April 2013 and that the Authority had accepted the obligations continued into 2012. 38 The appellant submitted that, leaving aside the question of how the 2013 reporting and the 2013 assault were treated by the Authority (which is the subject of ground 1), there was no explanation for the Authority drawing the line at 2013. This ground is not dependent on the 2013 reporting and assault argument. In that context, the penultimate sentence in paragraph [27] concluded: I consider it implausible that the applicant would continue to have to report to the army in 2013 so many years after his release especially given the short duration of his detention and the nature of his purported "crime". 39 The respondent submitted that a finding as to whether a particular claim is implausible is a question of fact for the decision-maker. While accepting that questions of fact need to be reasonably arrived at on the basis of evidence, the respondent contended that, by reference to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS), it is not enough to submit on a particular set of facts that a different conclusion might have been reached on the information. It was submitted that paragraph [27] contained an evident and intelligible justification for the conclusion regarding the reporting obligations, in that the Authority relied upon the passage of years since the appellant's offence, the short duration of detention and the nature of the purported crime. The respondent contended these bases supported a conclusion that at some point the reporting obligation was going to cease. Where the authority has drawn the line is after 2013, and the respondent contended that it was open to the Authority to make the finding it did. 40 The respondent cautioned against reading the term "implausible" literally. It was submitted that when read in context, it really meant that the Authority was not prepared to accept that the claim was true on the basis that whilst it was convinced of the claims in relation to the assaults and reporting obligations in 2011 and 2012, there was an inconsistent presentation of claims concerning an assault in 2013 and the existence of reporting obligations in that same year were raised late. For that the respondent relied on the sentences in paragraph [27] which preceded the impugned conclusion. 41 To that the respondent added that there was qualitatively different information before the Authority concerning the 2011 and 2012 incidents. It was submitted that the 2011 and 2012 evidence of assault was specifically identified in the SHEV statement (extracted at [20] above), whereas the 2013 assault was not. The 2011 and 2012 incidents (referring to serious beatings and use of pliers) were matters expressly referred to in the arrival interview (extracted at [19] above) and these accounts were repeated over time, which lends support to them having occurred. 42 The respondent submitted that the Authority's conclusions in relation to when the appellant had first said he had ongoing reporting obligations was open to it. The respondent relied on Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301; (1994) 34 ALD 347 at 348 in submitting that the Authority does not need rebutting evidence before finding that a claim by an applicant is not made out, and, as such, the Authority did not need evidence before it that the appellant was not subject to the reporting obligation in 2013, all it needed to do was rationally and reasonably consider the claim and reach a conclusion as to whether it should be accepted. 43 While the oral argument of the appellant focused on the impugned finding being legally unreasonable, in the sense that it lacked an evident and intelligible justification (as outlined at [37] above), the amended ground 2 as drafted alleges that the reasoning in [27] is "affected by illogicality, irrationality, legal unreasonableness or some other unidentified legal error". 44 Legal unreasonableness may arise in the decision-making process or merely from the outcome and one may ask whether the decision lacks an evident or intelligible justification: Fattah v Minister for Home Affairs [2019] FCAFC 31 (Fattah) at [45] per Perram, Farrell and Thawley JJ (citing Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486 at [36] per Gilmour and Mortimer JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [8] and [21] per Allsop CJ). The test for legal unreasonableness is necessarily stringent: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at [11] per Kiefel CJ. It is the reasons of the decision maker which must be examined in determining whether there is an "intelligible justification": Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ; Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486 at [37] per Gilmour and Mortimer JJ. 45 Jurisdictional error may be established in relation to a decision, or a process of reasoning, which is irrational, illogical or not based on probative evidence: SZMDS at [130] - [131], [135] per Crennan and Bell JJ. An allegation of illogicality or irrationality "is nevertheless an allegation of the same order as a complaint that a decision is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable'": SZMDS at [130] per Crennan and Bell JJ. 46 Irrationality or illogicality will not be established if the decision is one upon which reasonable minds may differ: SZMDS at [131], [135] per Crennan and Bell JJ; Fattah at [45] per Perram, Farrell and Thawley JJ. As set out in SZMDS at [133] per Crennan and Bell JJ, the correct approach is to ask whether it was open to the Authority to engage in the process of reasoning in which it did engage and to make the findings of fact it did on the material before it. Jurisdictional error will generally not be established in relation to an irrational or illogical finding if that finding was immaterial, or not critical, to the ultimate conclusion or end result: AVQ15 at [41(d)]. 47 Caution is required by the Court in assessing a complaint of unreasonableness to ensure that it does not impermissibly engage in a merits review of the decision: Li at [66]. It is also well settled that the reasons of an administrative decision maker are not to be "construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. 48 In considering whether the Authority provided an evident and intelligible justification for finding that it did not accept the reporting obligations existed in 2013, the reasons provided by the Authority need to be examined closely, in light of the evidence before it. 49 In that context, given the basis of the appellant's argument, it is appropriate first to consider the Authority's conclusion in the penultimate sentence to paragraph [27], that the claim was implausible. 50 On the face of the reasoning in paragraph [27], it is the time since the appellant's release, the length of time in detention and the nature of the appellant's purported offence which, according to the Authority, made the conclusion of a reporting obligation in 2013 implausible. It is that finding that is primarily challenged. While there is no doubt, as contended by the respondent, that it is open to an Authority to find that such factors could lead it to a finding that reporting obligations may not have extended to a certain time, the Authority does not provide any explanation for why these factors in this case made the reporting obligations in 2013 implausible while accepting that the appellant may have been under such obligations in 2012. This is so in the particular circumstances of this case which relevantly include the short period of time between 2012 and when the appellant left the country, being early April 2013 and where the Authority accepted that in 2011 and 2012 the appellant may have been reporting and had been assaulted resulting in injuries to his arms and fingers (which include the use of pliers to remove his fingernails on an occasion when he reported in 2012). The Authority does not provide any reasoning as to what about the time since release, the nature of the offence and duration of the detention that rendered the claim of reporting in 2013 incapable of belief, when it accepted these events occurred in 2012. As the respondent submitted, the Authority is entitled to draw the line somewhere, accepting that findings of fact need to be reasonably arrived at. However, that submission does not provide an explanation or point to a reasoning process as to why, in the particular circumstances of this case, that line is drawn at 2013. In the particular circumstances of this case it appears to be an arbitrary conclusion. In light of the Authority's findings in relation to 2012, there is no evident or intelligible basis provided in the reasons for the finding of implausibility: Li at [76]; Fattah at [46]; Singh at [45]. The reasons do not provide an intelligible path of reasoning to support the conclusion: Li at [76]; Singh at [45]. 51 As noted above, the respondent cautioned against reading the term "implausible" literally and submitted it really meant that the Authority was not prepared to accept that the claim of reporting in 2013 was true on the basis that in relation to 2013 there was an inconsistent presentation of claims concerning an assault and there was a late raising of there being a reporting obligation at all in that year. However, a plain reading of paragraph [27] indicates that the Authority's implausibility finding is based on the time since release, the short duration of the detention and the nature of the crime (which is presumably a reference to the appellant's 2009 detention). 52 The process of reasoning leading to paragraph [27] in this case appears to have been: the appellant made a late claim regarding his ongoing reporting requirements in 2013 when he departed Sri Lanka, it not being explicitly referred to until his SHEV interview in answer to a question by the delegate; that while the appellant may have been required to report in 2011 and 2012 and he was assaulted at that time, the Authority did not accept the 2013 assault on the basis that the evidence of it was inconsistently raised, that there was an "extreme lack of detail surrounding the claim" and that it was not mentioned in the SHEV application or interview; and, that it was implausible that the appellant would have been required to report in 2013 given the time since release, length of detention and the nature of the offence. That is, the Authority did not accept the information about being required to report in 2013 and the assault in February 2013, and so putting that to one side, on the face of the reasoning in [27], it is the mere fact of the time since release, period of detention and the nature of the offence which made the claim implausible. That conclusion is a separate conclusion. 53 The Authority's non-acceptance of the 2013 assault and the finding that there was a late claim of reporting obligations in 2013 were relevant to its conclusion in the final sentence of paragraph [27], that it was not satisfied the appellant had reporting obligations in 2013. However, the implausibility finding was a separate consideration also taken into account in that conclusion. 54 Given the Authority's non-acceptance of the 2013 assault and the finding that there was a late claim of reporting obligations in 2013, the implausibility finding was of significance in the conclusion in the last sentence of paragraph [27]. The issue is whether that finding was material to the Authority's ultimate conclusion. 55 The appellant submitted that the Authority's conclusion in relation to whether the reporting was ongoing at the time of his departure in 2013 is central to the way in which it reasons that no protection is owed to the appellant. The appellant submitted that, if there was a finding that the Authority reasoned that there was no particular reason why he needed to leave in April 2013, this is central to its finding that there is therefore no harm that would come to the appellant on his return to Sri Lanka, and therefore no protection is owed. The appellant referred to part of paragraph [37] which relevantly states as follows: 37. … As I do not accept the applicant is of any ongoing interest to the authorities I find that there is not a real chance the applicant will be detained, tortured or otherwise harmed on his return to Sri Lanka by reason of his ethnicity or origins because he is a returning asylum seeker. 56 The finding that the appellant was not under a reporting obligation in 2013 when he left the country is material to the Authority's decision as it appears, albeit with the country information, to underpin the Authority's conclusion that the appellant would no longer be of interest to the authorities. The finding forms a material part of its ultimate conclusion that the appellant did not meet the requirements of the definition of refugee in s 5H(1), thereby not meeting the requirements of s 36(2)(a). In relation to the complementary protection criterion in s 36(2)(aa), the Authority found that "'[r]eal chance' and 'real risk' involve the same standard. For the same reasons, I am also not satisfied the applicant would face a 'real risk' of significant harm". 57 The erroneous finding was material to the ultimate finding of the Authority. Jurisdictional error has been established. Conclusion 58 Leave is granted to the appellant to rely on the two amended grounds of appeal. 59 As the second ground of appeal is established, the appeal is allowed. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.

AYQ18 v Minister for Home Affairs

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Cases Cited (36)

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