CEF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2023-10-16|Before: Respondent Mr J, Hespe J

The appeal is dismissed.
The Appellant is to pay the First Respondent's costs, to be taxed if not agreed. 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 judgment of the Federal Circuit Court of Australia delivered on 14 August 2020 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the Minister of Immigration and Border Protection (delegate) under s 65 of the Migration Act 1958 (Cth), refusing to grant the Appellant a Protection visa.

BACKGROUND 2 The Appellant is a citizen of Sri Lanka who first arrived in Australia on 9 August 2012. He applied for a Protection visa on 15 January 2013. 3 On 10 September 2014, the delegate refused to grant the Appellant a Protection visa on the basis that the criteria in s 36(2) of the Migration Act were not satisfied. 4 On 17 September 2014, the Appellant applied to the Tribunal for review of the delegate's decision.

Tribunal Decision 5 On 13 July 2016, the Tribunal affirmed the delegate's decision. The Tribunal concluded that: (a) the Appellant did not have a well-founded fear of persecution within the meaning of (former) s 91R of the Migration Act. The Tribunal found (at Tribunal Reasons [83] and [120]) that the Appellant did not face a real chance of serious harm in Sri Lanka for reason of his actual or imputed political profile arising from association with his brother, his unauthorised departure from the Internally Displaced Persons Camp (IDPC), his departure from Sri Lanka, his Tamil ethnicity or race, being from the northern region of Sri Lanka, and/or as a member of a particular social group being young Tamil males from the Northern Province; and/or family members of people involved in the Liberation Tigers of Tamil Eelam (LTTE); and/or failed asylum seekers or Tamil returnees from a Western country, now or in the foreseeable future. The Appellant was therefore not a refugee for the purposes of s 36(2)(a) of the Migration Act. (b) there were no substantive grounds for believing that as a necessary and foreseeable consequence of the Appellant being removed from Australia to Sri Lanka, there is a real risk that the Appellant will suffer significant harm. Section 36(2)(aa) was therefore not satisfied. 6 Before the Tribunal the Appellant had claimed that he would not be able to cope psychologically with return to Sri Lanka. The Tribunal accepted that the Appellant may have some vulnerability as a result of past trauma which may resurface in Sri Lanka. The Tribunal considered the claim that return to Sri Lanka will amount to serious or significant harm and concluded at Tribunal Reasons [52]: In considering whether the applicant's vulnerabilities are such that return to Sri Lanka will amount to serious or significant harm, the Tribunal has had regard to the non-exhaustive examples of serious harm in s.91R of the Act, and the definition of significant harm in ss.5 and 36(2A) of the Act. The Tribunal has taken into account that the applicant will have the support of his parents and siblings, and his community in general, on return to Sri Lanka. The Tribunal has also taken into account country information discussed with the applicant that the situation in Sri Lanka generally has improved significantly since the time of the applicant's departure from Sri Lanka. Taking all the evidence into account, the Tribunal finds that the applicant's past vulnerabilities will not result in serious or significant harm as defined. 7 The Tribunal accepted that the Appellant would be returning to Sri Lanka involuntarily and would be questioned by authorities on his arrival. The Appellant had submitted to the Tribunal that any such questioning would amount to serious or significant harm because of the Appellant's vulnerabilities arising from his past experiences. Although the Tribunal accepted that the Appellant may have some vulnerability as a result of his past experiences, and that questioning may have a greater impact on him, it found that the questioning would be brief and that he would not be mistreated. The Tribunal found that the questioning would not result in serious harm or significant harm to the Appellant (Tribunal Reasons [91]-[93]). 8 The Tribunal did not accept that the Appellant would be of adverse interest to the authorities upon his return to his home area but accepted that upon return to Sri Lanka, the Appellant would likely be required to report to the authorities (Tribunal Reasons [96]). The Tribunal considered that reporting requirements did not constitute serious or significant harm. The Tribunal found that the Appellant would not be mistreated while meeting the reporting conditions and that, after a period of time, he would no longer be required to so report to the authorities (Tribunal Reasons [96]). 9 The Tribunal found that the Appellant does not face a real chance of serious harm or a real risk of significant harm on return to Sri Lanka, including during the period he would be required to report to the authorities. In reaching its conclusion, the Tribunal said (at Tribunal Reasons [108]): The Tribunal has considered his future interactions with the authorities and the country information above, and determined that he does not face a real chance of serious harm or a real risk of significant harm, on return to Sri Lanka, including during the reporting requirement period. The Tribunal does not consider that the authorities will harm the applicant when he does report to them on return, as detailed above. In this consideration, the Tribunal has taken into account the applicant's vulnerabilities arising from his past experiences with the authorities in Sri Lanka. The Tribunal has also taken into account that on return to his home area, the applicant will have the support of his parents and siblings and community. The Tribunal has also had regard to the non-exhaustive examples of serious harm in s.91R of the Act, and the definition of significant harm in ss.5 and 36(2A) of the Act. On the evidence before it, the Tribunal finds that reporting to the authorities on return to his home area does will [sic] not constitute either serious harm or significant harm to the applicant because of his past experiences. The Tribunal does not accept that the applicant faces serious or significant harm for this reason. 10 The Appellant had also claimed that the military continues to have a heavy presence in his home area. The Tribunal considered whether that presence would result in any serious harm or significant harm to the Appellant because of his vulnerability arising from his past experiences in Sri Lanka. The Tribunal found it would not do so. At [116] of its reasons the Tribunal recorded: The Tribunal has further considered whether the presence of military personnel in the applicant's home area will result in either serious harm or significant harm to the applicant because of his vulnerability arising from his experiences in the past in Sri Lanka with the military. As discussed above, the Tribunal has considered all the evidence, including that the applicant will be in the supportive environment of this parents [sic] and family and community. The Tribunal has had regard to the non-exhaustive examples of serious harm in s.91R of the Act, and the definition of significant harm in ss.5 and 36(2A) of the Act, and finds that the presence of military in the applicant's home area will not constitute either serious harm or significant harm to the applicant because of his past experiences. The Tribunal does not accept that the applicant faces serious or significant harm because of the military situation in the north and his circumstances.

Application before the Primary Judge 11 In the application before the Primary Judge, the Appellant relied upon three grounds of review. This appeal only concerns the third of those grounds (Ground 3). By that ground, the Appellant contended that the Tribunal's findings at Tribunal Reasons [108] and [116] to the effect that the Appellant on return to Sri Lanka would have the support of his parents, siblings, and community, were without evidence or unreasonable. 12 The Primary Judge dismissed Ground 3, holding at [17] that: The applicant's oral evidence at the hearing regarding his active relationships with family in Mullaitivu and written evidence (confirmed at hearing) regarding his father as "well-respected and trusted" provides a sufficient basis for the Tribunal's finding: see [28(b)]. There is no claim of any breakdown of the relationship between the applicant and his family. There was also evidence of the applicant's brother unnamed living with his family and that the applicant keeps in touch with his family: [41], [43] and [49].

grounds of appeal 13 On appeal to this Court, the Appellant contends that the Primary Judge erred in rejecting Ground 3. The Appellant contends that: (a) there was no evidence to support findings made that the Appellant "will have the support of his parents and siblings, and his community" (Tribunal Reasons [52]) and the Appellant "will be in the supportive environment of this [sic] parents and family and community" (Tribunal Reasons [116]); (b) the fact that the Appellant's father may have been "well-respected and trusted as a supporter and administrator of the government" "as a Social Services officer before the war; even throughout LTTE occupation, while in the IDPC, and that he continues to be in this role" (Tribunal Reasons [50]) is not evidence which supports the conclusions reached by the Tribunal that the Appellant "will have the support of his parents and siblings and community" (Tribunal Reasons [108]) and the Appellant "will be in the supportive environment of this [sic] parents and family and community" (Tribunal Reasons [116]); (c) while the "no evidence" ground requires there be no evidence at all upon which a finding could have been based, in this case the evidence of the father's work history and that he is well-respected and trusted as a supporter and administrator of the government says nothing about whether the Appellant's father and mother will support the Appellant, nor whether he will be in a supportive environment of his parents and family and community. 14 In support of his contentions, the Appellant relied upon a statement by the Full Court in Minister for Immigration, Local Government & Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77 in which Davies, Burchett and Lee JJ said at 80: Federal legislation emphasises the need for reasoned decision-making. See eg, the FOI Act, s.13 of the ADJR Act, ss. 28(1) and 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). Thus, decisions may be set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or because there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power. The making of, or failure to make, a particular finding of fact in the course of the reasoning process may equally be attacked on any such ground.

Consideration OF GROUND OF APPEAL 15 To succeed on a "no evidence" ground of review, it is necessary for the Appellant to establish that there was no evidence at all upon which the administrative decision maker could have based his or her finding: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-56 (Mason CJ). In BSE17 v Minister for Home Affairs [2018] FCA 1926, Moshinsky J said at [33]: …The "no evidence" ground cannot be made out unless it is established that there was no evidence capable of supporting the impugned finding or inference. Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration & Border Protection [2015] FCA 1151, [59]. Further, evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter: Minister for Immigration & Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, [39]-[41] per Gummow and Hayne JJ; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 367 per Deane J. 16 The reference in Pashmforoosh to "no evidence or other material sufficient to justify the making of the decision" is not an invitation to this Court to weigh material supporting a finding against other material before the decision maker that was contrary to the finding. Such weighing of materials is part of the fact finding role of the Tribunal: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [197] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33]. The "no evidence" ground requires that there be no probative material to support the finding: Bond at 355-56 (Mason CJ). 17 The Tribunal Reasons record that at the hearing, the Appellant confirmed that he has two brothers who live in Sri Lanka. One brother is married and working on a farm, the other is at home and helps around the house and the Appellant is in touch with his family, usually through his mother (Tribunal Reasons [28(b)]). 18 In a statement provided as part of his visa application, the Appellant stated that his father was a social service provider and would help people who had been injured in the war and provided them with support (Tribunal Reasons [20(d)]). At the hearing before the Tribunal, the Appellant confirmed that his father continues to work as a social service officer for the government (Tribunal Reasons [28(b)]). 19 There was no evidence of a breakdown in the relationship between the Appellant and his family. To the contrary, there was evidence of continuing familial relationships (including between the Appellant and his family), and that the family supports one brother who lives at home. It was open to the Tribunal to infer, as a matter of ordinary human experience, that the Appellant's family would be supportive. There is no suggestion here of the Appellant's family being in any form of detention or refugee camp or being practically deprived of an ability to provide support: cf DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529. 20 The Tribunal did not accept that the Appellant would be a person of interest to the authorities in Sri Lanka or that the authorities would harm him upon return to his home area (Tribunal Reasons [96], [108]-[109]). There was no practical barrier to the Appellant returning to his family. 21 As the Minister contended, the Appellant's father's role as a social service provider is evidence of a system of communal support existing in the Appellant's home community. The Tribunal found that subsequent to the Appellant's family returning to their home area, the family had not experienced any difficulties from anyone and that the Appellant's father is well-respected and trusted as a supporter and administrator of the government (Tribunal Reasons [50]). In those circumstances it was open to the Tribunal to infer that the Appellant would enjoy some level of community support. 22 The Appellant submitted that there was no evidence to support the Primary Judge's "finding" at [17]. That submission is rejected. At PJ [17] the Primary Judge identifies the evidence and material that was before the Tribunal. As explained above, that evidence and material was capable of supporting the finding made by the Tribunal. The Primary Judge did not err in concluding that the no evidence ground was not made out. 23 For these same reasons, it cannot be said that the Tribunal's findings were illogical or legally unreasonable. Because there was material that was logically capable of supporting the Tribunal's finding that the Appellant will have the support of his parents and siblings and community, it cannot be said that the finding was legally unreasonable. 24 During oral submissions, counsel for the Appellant appeared to contend that the Tribunal's overall conclusions (as summarised at [5] above) were unreasonable on the basis that they were illogical. The decision was said to be "wrong", "bad" and "unsupported or unreasonable". That submission amounted to a disagreement with the merits of the decision. The Tribunal provided reasons for the conclusions it had reached. Having regard to the findings made, the decision cannot be said to be illogical. The ground of legal unreasonableness cannot be supported.

NOtice of conention 25 By a notice of contention filed with the First Respondent's written submissions, the First Respondent contended that even if the Tribunal's findings at Tribunal Reasons [52], [108] and [116] to the effect that the Appellant "will have the support of his parents and siblings, and his community in general" were made with no evidence and/or were unreasonable, any such error did not constitute jurisdictional error because it was not material to the outcome. The Appellant did not object to the First Respondent relying upon the notice of contention. 26 Having rejected the Appellant's contentions that there was no evidence for those findings and that the findings were unreasonable, the issue of materiality does not arise.

Conclusion and orders 27 The appeal is to be dismissed. The Appellant is to pay the First Respondent's costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe.

Migration Act 1958(Cth)ss 36(2), 65, (former)

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