AYY15 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-02-21|Before: Steward J

The appeal be dismissed.
The appellant pay the costs of the first respondent, as agreed or as assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an appeal from a decision of the Federal Circuit Court handed down on 17 November 2016 which rejected the appellant's application for judicial review of a decision made by the Refugee Review Tribunal (as it was then) (the "Tribunal") dated 14 May 2015. The Tribunal's decision was that it was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the "Act"). 2 The appellant is a citizen of Sri Lanka and a Tamil who had sought a Protection (Class XA) visa from a delegate of the first respondent (the "Minister"). On 10 December 2013, the Minister refused to grant that visa. On 27 December 2013, the appellant lodged an application for review with the Tribunal.

Proceedings Before the Federal Circuit Court 10 By application filed in the Federal Circuit Court on 9 June 2015, the appellant sought judicial review of the Tribunal's decision. The learned primary judge set out the five grounds of review at par 9 of the reasons for decision below. Paragraph [9] states: The applicant has filed four grounds in support of his application which are as follows: 1. The Tribunal found the applicant is a credible witness, but fell into jurisdictional error when it found that he would not be of continuing adverse interest to the authorities despite being left area (sic) without reporting to them as instructed. Such finding was not supported by evidence. Please refer to page 10 last dot point of the RRT decision record. (CB 253) 2. The Tribunal did not assess the applicant's integer claim of facing persecution at the hands of the authorities for leaving the area without reporting to them. 3. The Tribunal accepted the applicant was forced to sign documents in Singhalese but trivialised the consequences and by doing so not assessed this piece of information and fell into jurisdictional error. 4. The Tribunal has not assessed another integer claim and in particular his father and siblings association with LTTE and its impact on him. 5. The Tribunal has not assessed the applicant's claimed cumulatively and thereby fell into jurisdictional error. The learned primary judge found that the first ground was in the nature of merits review and therefore impermissible. The second ground of review was found to be misconceived because the Tribunal had assessed the appellant's claim of the possible persecution at the hands of the authorities for leaving the district without reporting to them. The third ground of review was rejected because it again amounted to merits review. The Court rejected the fourth ground on the basis that the Tribunal did take into account the appellant's father and siblings and their association with LTTE. It decided that its finding on this matter was open to it on the material before the Tribunal. It finally rejected the fifth contention that the Tribunal had not assessed the appellant's claim cumulatively. 11 The Federal Circuit Court dismissed the appellant's application.

Appeal Grounds 12 By notice of appeal dated 6 December 2016 the appellant appealed the decision of the Federal Circuit Court to this Court. That notice of appeal disclosed two suggested errors namely that: (a) the Federal Circuit Court finding that the appellant would not be of continuing interest to the authorities in Sri Lanka despite him having left without reporting to those authorities as instructed, was illogical and irrational; (b) the Federal Circuit Court erred in concluding that the Tribunal had assessed the appellant's claim cumulatively. 13 On 7 May 2017 the appellant filed an outline of written submissions. In those submissions he contended that the finding of the Tribunal outlined in ground (a) above was "not open on the evidence" and "there is no logical connection between the evidence and the inferences and conclusion drawn by the decision maker". The appellant referenced the judgement of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611. The appellant further submitted: In the light of the … overwhelming evidence accepted by the Tribunal, the finding by the Tribunal … that the chances of the appellant being seriously or significantly harmed is or will be remote is so untenable and amounts to jurisdictional error. In the outline of written submissions, the appellant sought leave to amend his grounds of appeal by adding an additional ground of appeal. The additional ground was a claim that the Tribunal had failed to consider the country information submitted by the appellant. At the hearing of this matter on 15 February 2018 I gave the appellant leave to rely upon this new ground. In the appellant's outline of written submissions, it was contended that I should infer that these materials could not have been considered, as the Tribunal handed down its decision the day after the hearing. 14 Finally, the written submissions of the appellant invoked the decision of this Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556. Following a dismissal of an appeal from that case by the High Court ((2017) 91 ALJR 936) this ground of appeal was not pursued.

Consideration 15 In my view the appellant's first ground is not made out. In SZMDS, Crennan and Bell JJ said at par [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. In my opinion it was open on the evidence for the Tribunal to decide that, in all the circumstances, the warnings communicated by the Sri Lankan CID in 2011 to the appellant did not satisfy the criteria for the grant of a protection visa pursuant to either s 36(2)(a) or s 36(2)(aa). In my opinion, it was plainly a matter taken into consideration by the Tribunal, but of itself was not sufficiently persuasive. The learned primary judge was correct to conclude at par [11] of the reasons below that the Tribunal's conclusion must be considered "in the context of the conclusions preceding it and the Tribunal was entitled to give such weight to the evidence led by the applicant as considered appropriate in all circumstances". 16 At the hearing, the appellant expressed the view that he could not reconcile, on the one hand, his subjective fear and the Tribunal's findings as to his credibility with, on the other hand, the Tribunal's conclusion that the fear of persecution was not well founded. His complaint in this regard is misconceived because it overlooks the objective element of the requirement that there be a well-founded fear of persecution. In CNC15 v Federal Circuit Court of Australia [2017] FCA 1540, Charlesworth J said at par [23]: It is well established that the requirement that there be a well-founded fear of persecution contains both subjective and objective elements. There must be a subjective fear of being persecuted, and the fear must be objectively well-founded: "it must not all be in the mind; there must be a sufficient foundation for that fear": Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 396 (Dawson J). It was therefore open for the Tribunal to conclude that there was no sufficient foundation for the appellant's fear. 17 The second ground of appeal invites the Court to conclude that the Tribunal could not have considered and taken into account the country material presented by the appellant's migration agent. I reject that submission. Paragraph [20] of the reasons of the Tribunal sets out the material to which the Tribunal member had regard. It expressly includes the submission of the appellant's migration agent dated 23 March 2014 which contained the very material that the appellant complains was not taken into account. There is, therefore, no basis for concluding that the material was not considered as part of the Tribunal's preparation for hearing. Doubtless the material was read and considered before the hearing. For these reasons the primary judge's decision was not infected by any legal error.

Conclusion 18 The appeal is dismissed with costs, as agreed or as assessed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.

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