BWT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Consideration

The first submission was not disputed and may be accepted.
The first question, then, is whether the primary judge was wrong to reject the argument that the Authority failed to consider whether to exercise the discretion. The answer is that he was not.
The appellant relied on what he contended was "a marked contrast" between the Authority's reasons at [55]-[56] and the following extracts from an unauthorised (but uncontentious) transcript of his evidence before the delegate: D: So can you tell me why you couldn't live in Batticaloa? A (through the interpreter): Because in Batticaloa all are Tamil. Because my father is attached to police force all the Tamil think that we are working with Government or supporting Government and we are going against Tamils. Tamils in Batticaloa think that we are working with Government and doing something against Tamil. D: Did anything happen to you in Batticaloa because of this? A: Nothing happened to me but my father had frequent threats. Not only that I don't think I would have stayed there if I lived longer. I wouldn't have lived longer after the election voting. D: So it sounds like that you are particularly concerned about what will happen to your father and his job and he will be arrested that will affect his family? A: That is one that is going to happen in Batticaloa and the other one what's happening in Thalavakalai is they will kill my family and kill me to. 100% I know if I go back I won't live. I won't be able to live. … D: So other than Thalavakalai and Batticaloa is there any other place do you think you could live without any hassles caused by people in Thalavakalai or Karuna group? A: Definitely not. I don't think to live longer than 2 days in other places because when I go to Thalavakalai I have to go to signing thing and I can't leave to any other place. More than this I won't be alive. (Emphasis in appellant's submissions.)
The Minister did not take issue with the appellant's submission that, in view of the various references in the Authority's reasons to information discussed in the interview with the delegate, it should be inferred that the Authority either received a transcript of the interview or listened to a recording of it.
The passages in the Authority's reasons which are said to be markedly different from the above passages in the transcript of the interview are the findings in the last four sentences of A[55] (see [27] above) and the following two sentences of A[56]: The applicant said he did not think he could live anywhere else because he would need to sign up with local officials … I do not accept Batticaloa where he has family and where he has previously resided and studied that [the administrative hurdles] would be a barrier to him relocating to Batticaloa where he has family and where he has previously resided and studied …
The appellant submitted: Given the significance of the discrepancies between the responses provided by the appellant to the Minister's delegate in the protection visa interview and the purported (but inaccurate) restating of those responses in the delegate's reasons, it may also be inferred that the Authority did not consider whether to exercise its power to invite the applicant to clarify in writing or at interview whether he could relocate to Batticaloa if required to return to Sri Lanka, pursuant to the Authority's powers under s 473DC(3) of the Act.
I reject the submission.
During oral argument, when asked to identify with precision the passages in the Authority's reasons which were inaccurate or inconsistent with the appellant's account, counsel for the appellant pointed to the following: …I find it implausible that if the applicant and his father were threatened by the Karuna Group during the 2012 election, and that his father refused to comply with those threats, that his father, stepmother and stepsiblings could continue to live, work and study in Batticaloa without issue or interference from the Karuna Group … (A[27]) … I reject his claim to fear harm from the Karuna Group and his father's participation in the 2012 election … (A[33]) … I find that Batticaloa was his home area for this assessment, and is the area he would voluntarily return to if he was returned to Sri Lanka … (A[55] … The applicant was asked whether he could live in Batticaloa or relocate to another area in Sri Lanka during the visa interview. The applicant said that he did not think he could live anywhere else because he would need to sign up with local officials … (A[56]).
She argued that, in considering the risks in Batticaloa, the Authority was focused on risks posed to his father and other members of the family, and the requirement to sign up with local officials, and ignored his evidence to the delegate (set out at [37] above) that he would not have survived had he remained in Batticaloa and that he would be killed if he returned to Batticaloa or anywhere else in Sri Lanka.
It is true, as the appellant emphasised in his submissions, that he reported in his statement in support of his visa application that his father received an anonymous phone call in 2012 that "certain persons would be coming to vote and should not be prevented" otherwise his son would be kidnapped and killed and this was the reason his father arranged for him to leave Sri Lanka. It is also true that in that statement he mentioned that his father had "complained to the human rights" about those threats and that he (the appellant) could not stay in, or return to, Batticaloa on that account. Furthermore, it is also true that in the passages from A[27], A[33], A[55] and A[56] upon which the appellant relied, the Authority did not refer to the appellant's accounts of the risks he would face if he were to return to Batticaloa or any other part of the country. But it is not true that the Authority ignored the appellant's evidence.
It is trite that the decisions of administrative decision‑makers must be read as a whole and considered fairly: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 (Kirby J). That point was reinforced in the judgment of the plurality (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) in BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [38] in the context of the same question raised by the present case: Their Honours observed that where, as here, "the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision‑maker's statement of reasons", whether the inference should be drawn is to be determined on the basis of two principles: first, that the statement of reasons must be read fairly and not in an unduly critical way and second, that the statement of reasons "must be read in light of the content of the statutory obligation pursuant to which it was prepared".
Far from ignoring the appellant's evidence about the risks he claimed he would face beyond his mother's "home area", the Authority not only adverted to it but evaluated it. That can readily be seen when the paragraphs from which the selected passages were taken are read as a whole.
At A[23], for example, the Authority referred to the delegate's question about why the appellant could not return to Batticaloa and the appellant's reference in response "to the specific risks to him and his father". Similarly, at A[25], the Authority referred to the appellant's evidence about the threats made to his father which he told the delegate involved threats to kill him (the appellant) and claims that the Karuna Group would "definitely kill him". Even in the passage selectively cited from the Authority's decision at A[27], the Authority referred to the appellant's evidence about the threats to both himself and his father and goes on to find them implausible. The appellant's position that threats to kill him were made in Batticaloa is the subject of the Authority's reasons at A[23]‑[33]. It is immaterial that the Authority did not refer to them expressly in A[55]‑[56]. After the passage in A[55] upon which the appellant relied, the Authority explained why it was of the view that the appellant would voluntarily return to Batticaloa if he were denied a visa, picking up its earlier reasons: I have found above that there is not a real chance of the applicant being seriously harmed in Batticaloa for any of the reasons he has claimed. For the same reasons, I am satisfied there is not a real risk of the applicant facing significant harm in his home area of Batticaloa for any of the reasons he has claimed.
That the impugned findings were at odds with the appellant's evidence is entirely unremarkable. Like the delegate, the Authority did not believe the appellant. It is no part of the appellant's case that the findings were not open on the evidence.
The appellant's submission flies in the face of the repeated warnings in the authorities against construing administrative decisions, as Heydon J put it in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at fn 73, "with an eye keenly focused on … or an ear keenly attuned to the perception of error".
I am at a loss to understand how the making of findings inconsistent with a referred applicant's account to a delegate implies that the Authority did not consider whether to exercise its discretion to invite the applicant to give new information. It follows that I am not persuaded by the second submission and the third submission falls away.
I now turn to the fourth submission. That gives rise to the question whether the primary judge was wrong to hold that the failure to exercise the discretion was not legally unreasonable.
The appellant relied on the summary of general principles of legal unreasonableness given by Perry J in BNGP v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 609 at [45]‑[50], with which Bromwich and Kennett JJ agreed at [138]. Two points made in the summary are presently relevant. They are first, that an evaluation of whether an administrative decision is legally unreasonable must be made having regard to the terms, scope and policy of the statutory source of the power; and second, that the determination of the question depends on "whether no rational or logical decision‑maker could arrive at the relevant decision on the evidence before the decision‑maker": DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85] (the Court); see also SZMDS at [130] (Crennan and Bell JJ).
In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 from which the first point was drawn, Allsop CJ observed at [11]: The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.
His Honour emphasised at [12] that it was "[c]rucial to remember … that the task for the Court is not to assess what it thinks is reasonable" (and to quash the decision if it concludes that any other view is erroneous) but to evaluate the quality of the decision by reference to the statutory source of the power and assess whether the decision was lawful having regard to the scope, purpose and objects of the power.
The appellant submitted that the Authority's failure to exercise, or consider exercising, its power in s 473DC(3) was legally unreasonable but did not explain why that was so. Rather, he submitted that it was notable that the primary judge did not address the discrepancies between his evidence before the delegate "and the way in which that evidence was paraphrased by the Authority". He did not submit that the Authority's failure to exercise the power lacked a rational foundation or an evident or intelligible justification or was plainly unjust, arbitrary, capricious or lacking in common sense having regard to the terms, scope and purpose of the statutory source of the power and therefore outside the range of possible lawful outcomes.
This submission, at least as put in writing, is concerned with the adequacy of the primary judge's reasons and is outside the scope of the appeal. If it is to be understood as a contention that the Authority's failure to exercise, or consider exercising, its discretion to seek information from him was legally unreasonable because it knew he had provided information regarding Batticaloa that was inconsistent with its findings, that contention must be rejected. In substance, that amounts to a submission that it was legally unreasonable not to give the appellant an opportunity to comment on a matter upon which the Authority was minded to rely in affirming the delegate's decision. That is tantamount to a submission that it is illegally unreasonable not to give a referred applicant the same rights afforded to applicants for review of other migration decisions, including the express obligations in ss 424AA and 424A and which required the Administrative Appeals Tribunal to "give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". That is contrary to the legislative scheme against which the question of legal unreasonableness must be evaluated.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, a case concerned with the exercise by the Refugee Review Tribunal of the power to review under Pt 7 of the Act, the High Court held that, absent any notification by the Tribunal to the contrary, an applicant is entitled to assume that the issues the delegate considered dispositive of the application are the issues arising in relation to the decision under review and, if the Tribunal is inclined to reach its decision by reference to another issue, a failure to notify the applicant would be a denial of procedural fairness. The Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) said at [35]: The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
However, as the Full Court (Reeves, Robertson and Rangiah JJ) observed in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [75]‑[76], there was no provision in Pt 7AA akin to s 425, which required the Authority to invite a referred applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review and it was open to the Authority to disagree with a delegate's decision without providing the referred applicant with an opportunity to respond.
If the appellant's submission is to be understood as a submission that the Authority's failure to exercise the power in s 473DC(3) was "plainly unjust", I reject it. While it was of course open to the Authority to squarely put the inconsistencies to the appellant, it was not bound to do so and I do not think it can be inferred from the Authority's reasons that it committed a jurisdictional error in not giving him an opportunity to address them.
The primary judge held that there was no error in the Authority determining that Batticaloa was the appellant's "home area". By "no error", I take his Honour to have meant "no jurisdictional error". The appellant did not suggest that the Authority's finding on this question was incorrect, let alone legally unreasonable, although he embraced the remarks made in CRI028 v Republic of Nauru [2018] HCA 24; 256 ALR 60 about the use of such an expression.
In CRI028 at [45] Gordon and Edelman JJ said: The concept of a "home area" or a "home region" is not derived from the Refugees Convention. These terms have been used from time to time in judicial reasoning. There is nothing inherently objectionable or remarkable about their use in that context. But their sole function is as concise descriptors, which may be convenient in considering whether a person could reasonably be expected to relocate from one area in the country of their nationality to another. These terms do not displace the relevant and necessary inquiry. And there is no basis in the text or the purposes of the Refugees Convention to treat such descriptors as though they were terms in a statute to which meaning can and must be given. The decision of the Federal Court of Australia in SZQEN v Minister for Immigration and Citizenship should not be followed to the extent that it suggests otherwise.
In the present case, the Authority used the term "home area" to refer to the place to which it considered the appellant would return if it were to affirm the delegate's decision. That was a factual finding and a necessary starting point for the inquiry about whether it was reasonable for the appellant to relocate to another area of his country of nationality. The appellant did not argue otherwise. Nor did he contend that the Authority failed to consider whether he could reasonably be expected to relocate "from one area in the country of [his] nationality to another". Any such contention would be bound to fail as it is clear from the Authority's reasons that it did so.
I have difficulty, however, accepting the underlying premise of the appellant's contention that "the dispositive issue of the appellant's relocation in Batticaloa was not a reason or part of the reasons for affirming the delegate's decision". That is because the delegate found, amongst other things, that the appellant was not at risk of serious or significant harm either in Batticaloa or anywhere else in Sri Lanka. The only substantive difference between her reasons and those of the Authority was their conclusions concerning the level of risk in Thalavakalai.
I accept that the issue of relocation was "dispositive" for the Authority and not the delegate, insofar as the Authority, unlike the delegate, accepted that the appellant was at risk of serious harm in at least one locality. It follows that, unlike the delegate, the Authority was required to reach a conclusion about whether it was satisfied that it would be reasonable for the appellant to relocate to another part of the country where he would not be exposed to a real risk of significant harm.
But the fact that the issue of relocation was not "dispositive" for the delegate does not mean that she failed to consider the issue or give the appellant notice of it. And the appellant was well aware that relocation was a potential issue even before the interview so the Authority's finding on that question could not have taken him by surprise.
The appellant addressed the subject in his statement of claims (at [46]‑[47] and [49]). The delegate raised the subject with him at the interview. Furthermore, the delegate gave the appellant the opportunity to provide submissions in writing after the interview and the appellant availed himself of that opportunity. In those submissions, prepared by the appellant's then solicitor/migration agent, he argued that he could not return to the area in which his father resides for the same reason he could not return to his mother's village, namely, his imputed political opinion as a supporter of the LTTE. The submission concluded: We therefore submit that given the harm [the appellant] has faced and witnessed and is likely to continue to experience should he be forcefully returned to Sri Lanka in all areas of the country, Australia owes [the appellant] protection and should abide by [its] obligations.
Over seven weeks later, the delegate published her decision, rejecting that submission, finding: Overall, I do not find this claim to be credible. In interviewing the applicant it is apparent that he fears some Sinhalese thugs from Thalavakele, that he has lived a difficult life in which he has faced bullying and societal discrimination, the break-up of his family, other tragic events within his family, and has had to give up his education and study. In questioning the applicant, he appeared to be more concerned about the welfare of his family if he were to be returned and the consequences to his father and his profession if he was to be found to have departed Sri Lanka illegally. Whilst I accept part of the applicant's original reason for departing Sri Lanka may have been to escape harassment and harm by local thugs in Thalavakele, the applicant's account of learning of new threats to his life after arriving to Australia appear implausible and added to enhance his claims for protection. Whilst the applicant is adamant that he will be killed upon return to Sri Lanka, the applicant had no supporting evidence to satisfy me that he would be targeted by the Karuna group in Batticaloa or any part of the country. The applicant's father continues to remain in Batticaloa, has had no threats to his life, and his new wife and sons continue to live without any harm to their lives on account of his father's involvement in the election. I do not consider it plausible that the Karuna group would maintain an interest in targeting the applicant above and beyond other family members residing in Batticaloa. Given they have taken no action towards the applicant's family in Batticaloa, I find it implausible they would pursue the applicant some four years after the alleged threat. I find it more plausible that if the Karuna group were so intent on enacting revenge they would have taken any opportunity to cause harm to the remaining members of the applicant's family in Batticaloa. Overall I do not accept the applicant's claim as credible and find that he has embellished his story to strengthen his protection claims. (Emphasis added).
While these were reasons that the delegate was not satisfied that the appellant satisfied the refugee criterion, they were also part of the reasons the delegate was not satisfied that the appellant satisfied the complementary protection criterion.
The Secretary was required to give the Authority the delegate's decision, the material provided to the delegate by the referred applicant and any other material relevant to the review in the Secretary's possession or control (s 473CB). There is no reason to think that obligation was not complied with in this case. It is evident from the Authority's reasons that it had regard to all the material it was given.
Moreover, the appellant furnished the Authority with submissions which addressed the risk of harm outside Thalavakalai, albeit limited to the submission that he was at risk of harm from "Sinhala thugs" and that "the ability of the police to provide effective protection in other areas of the island would be of concern which the [Authority] must consider".
The appellant argued that it was unreasonable for the Authority not to consider exercising the power to seek further information from the appellant or to exercise that power because the delegate's questioning failed to adequately explore the nature and extent of the harm the appellant might face in Batticaloa and other parts of Sri Lanka apart from Thalavakalai. As I have already explained, that is not true of Batticaloa. In view of the opportunities the appellant was given to elaborate on this subject, both orally and in writing, and the extent to which he addressed the matter when availing himself of those opportunities, there is no reason to think that he had any more information to offer.
This is a very different case from CRY16 in which the referred applicant was not asked a single question about relocation in the interview, the issue arose for the first time in the Authority's reasons (see CRY16 at [76]), and the Authority had no information on the applicant's particular circumstances or the impact of relocation to Beirut (CRY16 at [82]). Here, in contrast, the appellant was questioned at the interview about relocation; the issue was addressed by the appellant twice in writing and once orally, and there was evidence in the material provided to the Authority which contained information on the risks the appellant claimed to face if he relocated to any other part of his country of nationality. It was not legally unreasonable for the Authority to rely on the material without requesting the appellant to provide "new information" about a subject he had addressed multiple times.
In these circumstances and for all these reasons, I cannot accept that any failure to consider whether to exercise the power in s 473DC(3) or the failure to exercise the power was unreasonable. In particular, I am not persuaded that in failing to invite the appellant to comment on the inconsistencies in his accounts or the findings it was disposed to make, the Authority's conduct was illogical, irrational, unjustified, unjust, arbitrary, capricious or lacking in common sense having regard to the terms, scope and purpose of a review under Pt 7AA.

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (15)