CAW17 v Minister for Immigration, Citizenship and Multicultural Affairs

The Authority's decision 5 The Authority was not satisfied that the appellants were persons to whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act: at A[69], [78]. 6 The Authority accepted that, at the time the appellants left Sri Lanka, as a matter of subjective belief, they held significant fears for their safety because of the threats they were receiving: at A[22]. However, noting that more than four years had passed between their departure from Sri Lanka and the Authority's decision, there had been a change in government, and that the country situation had significantly improved over that time, the Authority was not satisfied that there was a real chance of the appellants being persecuted in Sri Lanka in the reasonably foreseeable future: at A[23]. 7 With respect to the appellants' claimed fear of harm as a result of having departed Sri Lanka illegally, the Authority found that most people who depart illegally are issued with a fine and accepted that it was possible that the appellants would spend a period of up to 24 hours in custody at the airport, and potentially a further period in prison pending bail: at A[61]-[62]. The Authority accepted that incidents of detention and torture of returnees suspected of having links to the Liberation Tigers of Tamil Eelam (LTTE) do occur, but considered that the first appellant's assistance to the LTTE was known but not of adverse interest to Sri Lankan authorities: at A[59]. The Authority was not satisfied that there was a real chance of the appellants being detained for anything beyond a brief period: at A[62]. The Authority accepted that prison conditions in Sri Lanka are poor, involving overcrowding and poor sanitary conditions: at A[63]. 8 The Authority was not satisfied that Sri Lankan authorities would enforce the relevant legislation discriminatorily or selectively: at A[64]. Even considering factors including the second appellant's injuries, the Authority was not satisfied that a brief period of detention rose to the level of a threat to the appellants' life or liberty, or to significant physical harassment or ill treatment, or otherwise amounted to serious harm: at A[65]. Considering the totality of the treatment that the appellants would experience, the Authority found that it did not amount to serious harm: at A[66]. 9 Ultimately the Authority was not satisfied that the appellants were entitled to protection and a visa, pursuant to either paragraphs 36(2)(a) or (aa) of the Act, and consequently affirmed the delegate's decision to refuse to grant them the visa: A[69] and [78].

Grounds of review below 10 The appellants thereafter sought judicial review before the primary judge of the Authority's decision. The appellants' amended application for review below comprised the following grounds: 1. The IAA erred when it found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm. The Applicants do not meet S 36 (2)(aa). Particulars i. Paragraph 78 [CB551]; ii. Applicant 2 suffers from injuries or disabilities including: a. An arm injury; b. Broken bone; c. Inability to raise her arm over her shoulder; d. Backbone injured; e. Inability to walk; f. Loss of vision in left eye; g. Slight vision in right eye; h. Difficulty Walking [CB217/8] iii. The IAA accepted that the Applicants will experience upon return to Sri Lanka being questioned, investigated, held up to 24 hours at the airport and potentially for number of days in overcrowded and unsanitary conditions pending appearance before a magistrate and bail [CB549] because the prison conditions in Sri Lanka are poor [CB548]; iv. The IAA noted Applicant 2 had been badly injured in a motor cycle accident [CB535], v. The IAA however was erroneously not satisfied that acts or omissions of the Sri Lankan officials could are [sic] intended to cause severe pain or suffering, pain or suffering which could reasonably be regarded as cruel or inhuman, or extreme humiliation, as is required by the definitions of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment in S 5(1) and did not amount to significant harm within the meaning of s 36 (2A) [CB551]; Such error being unreasonable thereby amounting to jurisdictional error. 2. The IAA erred when it found the totality of treatment the applicants will experience does not amount to serious harm. Particulars i. Paragraphs 59 [CB547], 66 [549]; ii. Particulars ii to iv above are repeated; Such error being unreasonable thereby amounting to jurisdictional error.

The decision below 11 In relation to the first ground below, the primary judge found that the appellants' case before him did not go beyond "an emphatic disagreement" with the Authority's conclusion (at J[22]) and was, in reality, an invitation to engage in merits review that did not identify any jurisdictional error (at J[24]). His Honour noted that the Court had not been taken to any evidence that might have given the appellants' submission some logical foundation (at J[22]). His Honour held (at J[22]) that: For the Court to conclude that the IAA reached a conclusion that lacked an intelligible justification, in the sense that it was a decision which no reasonable decision maker would have reached on the available evidence, something more compelling than reference to an uncontextualised set of disabilities was required. 12 The primary judge also found that it was open to the Authority to find that, if the appellants were remanded, it would be because of the ordinary operation of Sri Lankan law. It was also open to the Authority to find that the nature of their time in custody would be the result of the condition of the Sri Lankan prison system and not the intentional actions of officials (at J[23]). 13 With respect to the second ground raised below, the primary judge found that the appellants' submission that CAX17 (the second appellant) would face serious harm by virtue of her injuries and disabilities merely expressed disagreement with the Authority's assessment to the contrary. This was not, his Honour found, sufficient to amount to unreasonableness, did not identify a material legal error, and instead constituted a further invitation to engage in merits review (at J[27]).

Grounds of appeal 14 By the appellants' amended notice of appeal dated 14 December 2023, they claim: New Ground: Ground 1 1. The lower Court erred in not finding the IAA committed jurisdictional error when the IAA found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm, and that the Applicants do not meet S 36 (2) (aa) of the Migration Act 1958 Particulars i. [24] ii. The lower Court considered Ground 1 of the Review Application at [17]-[24]; iii. The lower Court erroneously found the IAA's decision was no more than an emphatic disagreement with the IAA's conclusion [22] and that the Applicants' submission the IAA decision was "just quite unreasonable" had no logical foundation, when the submission, if accepted, would have reached the threshold of unreasonableness and amounted to jurisdictional error; iv. The lower Court erroneously found, for the Court to conclude that the IAA reached a conclusion that lacked an intelligible justification, in the sense that it was a decision which no reasonable decision maker would have reached on the available evidence, required something more compelling than reference to an uncontextualized set of disabilities[22], since any reasonable decision maker would have accepted the set of disabilities were wide ranging, clearly serious and disabling to the extent that the IAA decision was clearly erroneous; v. The lower Court erroneously found it was open to the IAA to find that, if the applicants were to be remanded in custody until brought before the magistrate, it was the result of the ordinary operation of Sri Lankan law and the applicants were not singled out for detention [23], when the decision would have been a discretionary decision of the police authorities to arrest (see [21]) and so specific to the applicants should they be arrested; vi. The lower Court erroneously found it was also open to the IAA to conclude that the nature of the experience that the applicants might have while remanded in custody would be the product of the state of the prison system in Sri Lanka, rather than of the intentional actions of government functionaries [23], when the police authorities had a discretion to arrest (see [21]) thereby avoiding internment or incarceration, which the police authorities failed to exercise; Accordingly, the lower Court came to unreasonable conclusions and so committed jurisdictional error. 15 The appellants sought the following orders in the amended notice of appeal (including a new proposed order in the form of the third order): 1. The IAA decision and the Federal Circuit Court judgement dated 16 December 2020 be quashed 2. That the matter be remitted to the IAA to be dealt with according to law 3. Leave to rely on new Ground. 4. Costs (Emphasis in original.)

The Authority's purported error 16 The appellants submitted that the Authority's decision was legally unreasonable, giving rise to jurisdictional error. 17 A review of an administrative decision to determine whether it is legally unreasonable is concerned with the enforcement of the law governing the limits of the power in question and not the manner of its exercise. Where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise will not be legally unreasonable simply because the Court disagrees with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92]. As has been observed previously, there are two analytical approaches which may be deployed to ascertain unreasonableness - unreasonableness as to the outcome of the exercise of power, or the reasoning that led to that outcome: Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; 297 FCR 162 at [81]. Where reasons are given for the exercise/non-exercise of a power, it is against those reasons that the Court conducts its review as to reasonableness: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47]. 18 The appellants contended that the Authority's decision (and that of the primary judge by his failure to accept the same) was legally unreasonable for four reasons, which I will address in turn. 19 First, the appellants contended that the evidence suggests that remanding returnees is done at the discretion of police and is therefore discriminatory. In support of this submission, they cited DFAT country information that used the phrases "can be charged" and "[t]hose who have been arrested" and referred to the Authority's own recognition of the possibility that the appellants would be detained (see A[62]). The appellants submitted that this recognition of the ability of authorities to choose whether to arrest returnees or not was contrary to the Authority's finding that the Sri Lankan Immigrants and Emigrants Act 1948 (I&E Act) was not "selectively enforced or applied in a discriminatory manner": at A[64]. In the appellants' submission, this also meant that it was not open to the Authority to conclude, as it did at A[74], that the enforcement of the I&E Act is not "intended to cause extreme humiliation which is unreasonable, or to otherwise inflict severe pain or suffering or pain or suffering that is cruel or inhuman in nature". 20 Secondly, the appellants submitted that the second appellant's injuries raise additional complications with respect to her potential incarceration. They noted that the second appellant's injuries and disabilities, including broken bones in her arms that resulted in her no longer being able to raise her arms above shoulder height, injuries to her back, and significant vision impairment, and difficulty walking, are, on any level, most serious. Her incarceration for up to three days in conditions that were accepted to be poor, overcrowded and involve poor sanitary conditions (at A[63]) would, in the appellants' submission, amount to cruel or inhuman treatment, or extreme humiliation, or punishment. 21 Thirdly, the appellants submitted that the Authority's conclusion at A[65] that the brief period of detention did not rise to the level of serious harm, even considering the poor prison conditions and their particular vulnerabilities, including their age and the second appellant's injuries, was unreasonable, capricious, without common sense or plainly unjust, had no evident, transparent or intelligible justification and was not defensible in respect of fact and law. The Authority, the appellants contended, had failed to explain what matters it considered and how it came to the view that the detention did not rise to the level of serious harm. 22 Fourthly, the appellants submitted that, while the Authority accepted that there was a real risk they would be investigated and detained at the airport, and then potentially detained for a number of days pending bail, and then issued with a fine, the Authority incorrectly concluded that this did not amount to significant harm (at A[73]). This conclusion was incorrect, they contended, in circumstances where the incarceration would be unreasonable, capricious, without common sense or plainly unjust, had no evident transparent or intelligible justification and was not defensible in respect of fact and law. 23 Fifthly, the appellants submitted that the Authority's conclusion that it was not satisfied that the acts or omissions of the Sri Lankan officials in the process would be intended to cause severe pain or suffering which could reasonably be regarded as inhuman, or extreme humiliation (at A[75]), was unreasonable, capricious, without common sense or plainly unjust, had no evident, transparent or intelligible justification, and not defensible in respect of fact and law. 24 I reject the first contention. It is unclear how this can be used to impugn the Authority's reasoning on the issue of complementary protection. The Authority's reasoning at A[64] with respect to discrimination was part of its consideration of whether the refugee criteria were met, and was concerned with whether a person has a "well-founded fear of persecution" (pursuant to s 5J(4)(c) of the Act), which, in turn, is relevant to the meaning of refugee under s 5H of the Act. Furthermore, it is plain from the Authority's reasons, at A[64], that it was concerned with whether it may be inferred that the appellants will be treated, under the I&E Act, in a discriminatory manner amounting to persecution within the meaning of s 5J(4) of the Act. The appellant does not cavil with the Authority's conclusion that the I&E Act applies to all Sri Lankans. There is nothing in the DFAT country information to suggest otherwise. Accordingly, there is no basis at all to suggest that the reference in that information to the police having a discretion to charge a person means that it can be inferred that the appellants will be treated in a discriminatory manner. 25 The appellants also claimed that the discretionary nature of the decision to remand a returnee means that decision is not the result of the ordinary operation of Sri Lankan law and it cannot be said that the appellants will not be singled out for detention. Instead, they submitted, it is the result of a specific intentional act, with the result that remanding a returnee in overcrowded facilities with poor sanitation for up to three days would amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment in accordance with s 5(1) of the Act. I also reject this submission. There is absolutely no basis to infer from the material before the Authority a conclusion that the appellant being removed from Sri Lanka would be the result of any "specific intentional act". While fact dependent, in SZATL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 262 at 28-9 per Kiefel CJ, Nettle and Gordon JJ, a majority of the High Court recognised that mere knowledge by a Sri Lankan official was insufficient to establish an intention to inflict the requisite degree of pain or suffering or humiliation. 26 For the same reasons, I reject the appellants' contention that the primary judge erroneously found at J[23] that it was open to the Authority to conclude that the nature of the experience that the appellants might have while remanded in custody would be a product of the state of the Sri Lankan prison system, rather than the intentional actions of government functionaries, even though the police would be exercising a discretion to arrest the appellants. 27 In addition, I reject the appellants' submission that the primary judge was in error when he found that was open to the Authority to find that, if the appellants were remanded in custody until brought before a magistrate, this would be due to the ordinary operation of Sri Lankan law, and the appellants would not have been singled out for detention (at J[23]). 28 As to the appellants' second to fifth contentions, they are rejected. The Authority expressly considered (at A[58]-[59] and [63]) whether the appellants faced a real chance of being subjected to torture upon their return. In particular the Authority had considered, at A[59], referred to above, the appellants' subjective fear of the Sri Lankan authorities, the second appellant's injuries and what harm she may suffer by reason of the background check and the questioning. The Authority went on to consider, in some detail, the effect of the I&E Act, and what the appellants are likely to experience at the airport and immediately thereafter when they are returned. This included the Authority accepting that the appellants would be charged in relation to their illegal departure from Sri Lanka under the I&E Act and held in prison pending bail (at A[62]), and accepting that prison conditions in Sri Lanka were poor (at A[63]). The Authority also expressly considered (at A[65] and A[75]) the second appellant's injuries and the appellants' vulnerabilities, but was not satisfied that any brief period of detention would amount to serious or significant harm. 29 Accordingly, the Authority attended to its task - it considered the potential harm arising from its findings as to the second appellant's medical conditions with the likelihood that the appellants would only spend a short time in custody. The Authority's judgment was a "qualitative" one that any hardship suffered would not amount to the requisite level of harm that was of the type within the domain of the Authority to make: AKU18 v Minister for Home Affairs [2019] FCA 267 at [46]-[47] per Burley J. 30 I do not accept the appellants' submission that the primary judge erred by finding that, for the Court to conclude that the Authority had reached a conclusion that lacked an intelligible justification (in the sense of being a decision that no reasonable decision-maker would have reached on the available evidence), this required something more compelling than reference to an uncontextualised set of disabilities (at J[22]). This contention was urged on the Court on the basis that any reasonable decision-maker would have accepted that the disabilities were clearly serious and disabling to the extent that the Authority's decision did lack an intelligible justification and was therefore clearly erroneous. For the reasons given above, it is apparent from this submission that the appellants misapprehend what is required in order to assert legal unreasonableness. 31 I am not satisfied that the legal unreasonableness threshold has been achieved and the appeal must therefore fail.

Conclusion 32 For these reasons, the appeal must be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.