DIN20 v Minister for Home Affairs

Federal Court of Australia|2021-04-09|Before: Mr J, Derrington J

The appeal is dismissed.
The appellant pay the first respondent's costs of the appeal. 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 of Australia (FCC) which dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the Authority). By its decision, the Authority affirmed a decision of the delegate of the first respondent, the Minister for Home Affairs (the Minister), not to grant the appellant a Safe Haven Enterprise Visa. 2 The appellant's sole ground of appeal is that a finding by the Authority that he was not considered by the Sri Lankan authorities to be a member or an affiliate of the Liberation Tigers of Tamil Elam (LTTE) was illogical or irrational, or in some way involved a fundamental misconstruction or misunderstanding of the evidence. It is submitted that this error vitiated the Authority's lack of satisfaction that the appellant satisfied the criteria for the grant of the visa.

The Authority's decision 17 It is not necessary to set out the Authority's decision in great detail. However, given the issues raised in his appeal, some attention needs to be given to part of it. 18 After setting out the background and the appellant's claim for protection, the Authority considered what appeared to be the essence of the appellant's case; namely that he had worked for an LTTE managed forest conservation group with the consequence that he would have imputed political opinions. The Authority considered his evidence concerning his alleged employment by that organisation including his failure to mention it during his arrival interview and the unimpressive oral evidence he gave at his SHEV interview regarding his claimed role in the organisation. It found his evidence to be vague and unconvincing, and parts of it were implausible. In the result it did not accept he worked for the forest conservation organisation. Further, it did not accept that he had come to the attention of the SLA as a consequence of his involvement with the organisation. This finding was not challenged on appeal to the FCC or to this Court. 19 A further essential element of the appellant's claim was his detention by the SLA. He claimed that in January 2007 he had been caught in a round up by the CID and SLA because, so he said, he was suspected of being an LTTE member by reason of his Tamil ethnicity and the SLA and CID regarded Tamils as the enemy. He also claimed that because he was engaged in forest conservation he was regarded as the enemy. As the Authority had rejected his assertion that he had worked for any such organisation, it concluded the SLA's suspicion of him as having an association with the LTTE stemmed only from him being a Tamil. 20 The Authority considered in detail the available Country Information which indicated that during the period when the appellant had claimed to be detained, the SLA frequently carried out arrests and detentions during "cordon and search" operations. These were conducted in areas with concentrated Tamil populations, particularly in Colombo and the Northern and Eastern provinces. The Authority noted that, although extensive powers were given for the arrest and detention of persons under the Public Security Ordinance Act or the Prevention of Terrorism Act, unlawful and arbitrary arrests were carried out by members of the security forces including the CID and SLA. It noted that there was a standard method of unlawful arrest and detention involving abductions using white vans and hooded men and noted that the length of any detention varied from days to months or years. It referred to the DFAT reports which indicated that the authorities detained more Tamils under the Prevention of Terrorism Act than any other ethnic group. The Country Information generally indicated that suspects detained under that Act were subjected to mistreatment and torture and, in that respect, the Authority accepted that the appellant may have been physically mistreated during this detention. 21 After further reference to the Country Information, the Authority accepted that detention under the emergency regulations could result in incarceration in rehabilitation centres for 12 months or more without charge or trial. However, it observed that the appellant was only detained for one night and questioned mainly about T, his coach from a sports club, and he was released the following day. 22 For the purposes of this appeal, paragraph 19 of the Authority's reasons is important and is set out in full as follows: At his SHEV interview the applicant said he was questioned about whether he knew [T] was an LTTE member and he told them [T] was not an LTTE member. The applicant said that at the time he understood that they did not ask many questions about him personally. Whilst I accept the applicant was detained overnight and for almost one day and questioned mainly about [T] who at the time was not himself in detention, given the applicant was released so soon after his arrest, I am not satisfied the SLA or the CID considered the applicant to be an LTTE member or associate or to have any links of significance with the LTTE. Whilst I consider his detention and mistreatment at the hands of the authorities may have played a part in his subsequent departure from Sri Lanka to India, at the time he was released I find that he was of no ongoing interest to the Sri Lankan authorities. I am not satisfied the authorities continued to make enquiries about the applicant with the police so soon after his release as the applicant claimed. 23 The Authority then identified the appellant's claims as to the circumstances of his travel to India in 2007 and what occurred at the Mandapam camp. It also set out in detail Country Information surrounding the previous difficulties of Tamil persons in Sri Lanka with imputed political associations with the LTTE. However, it also recognised the vastly improved socio-political situation in Sri Lanka and, in particular, for Tamils. Whilst it acknowledged that greater difficulties might be encountered by persons with a significant LTTE profile, it concluded that the appellant was not such a person and nor did he have any familial links to the LTTE. It further concluded that he was of no significant interest to the authorities at the time he departed Sri Lanka and nor did he have a well-founded fear of harm because of any perceived or real links to the LTTE. 24 The Authority also considered whether the appellant would suffer harm as a failed asylum seeker returning to Sri Lanka and concluded that he would not. 25 For the above reasons, the Authority concluded that it was not satisfied that the appellant met the definition of refugee in s 5H(1) of the Act and nor did he satisfy the criteria in s 36(2)(a). For those or similar reasons, it also concluded the appellant did not meet the complementary protection grounds in s 36(2)(aa) of the Act. It therefore affirmed the delegate's decision not to grant him a visa. 26 On 23 February 2019, the appellant applied to the FCC for the judicial review of the Authority's decision. His application was heard on 20 July 2020 but was dismissed that day by the primary judge.

Primary judge's decision 27 Following a detailed analysis of the background and circumstances of the appellant's claim, the primary judge turned his attention to the first ground of review which is the origin of the ground of appeal before this Court. That ground was as follows: 1. The Immigration Assessment Authority's decision … was based on findings and inferences which were not supported by logical grounds and thus is affected by jurisdictional error. 28 His Honour identified that this ground was directly concerned with paragraph 19 of the Authority's reasons (which is set out above) and, specifically, the Authority's conclusion that it was not satisfied the SLA or the CID considered the appellant to be an LTTE member or associate or to have any links of significance with the LTTE. It had been submitted to the FCC that such a conclusion was not open on the evidence. His Honour observed that the substance of the argument was that the Authority had wrongly concluded that the appellant had been rounded up in January 2007, physically mistreated and asked questions about his involvement with the LTTE and the person known as T, solely because he was a Tamil. It was also argued that the Authority's lack of satisfaction that the appellant was not suspected of having links with the LTTE was solely and erroneously based on the fact that he had been released shortly after his detention following the round up. 29 Before the primary judge, the appellant also relied upon certain Country Information which had been before the Authority. In particular, it referred to a copy of the Office of the United Nations High Commissioner for Human Rights Report on Sri Lanka dated 16 and 17 September 2015 (the UN Report). In that document, reference was made to what was termed an "emblematic case" which was said to be illustrative of the patterns of conduct of the armed forces. It concerned a critic of the Sri Lankan government who had been detained by unarmed persons but released the following day. Sometime later the person disappeared and was not heard of again. It was submitted that this demonstrated that persons who did have a political profile have been released one day after their initial arrest with the consequence that it was illogical for the Authority to conclude that the appellant was not identified by the authorities in Sri Lanka as a person with links to the LTTE because he had been released so soon after his arrest. 30 The appellant also submitted that the Authority had misunderstood the evidence arising from its questioning of him as to the nature of his interrogation at the hands of the SLA and CID. It was submitted that his evidence indicated that he was questioned about his personal involvement with the LTTE, rather than merely the perceived involvement of T. 31 The primary judge rejected this ground of review. He concluded that the relevant issue was the Authority's satisfaction "that the [appellant] was perceived to be an LTTE member affiliate or have some sort of links" (at [54]), and that its lack of satisfaction on this issue was supported by the evidence. It had concluded that the appellant was not otherwise associated with the LTTE and the mere fact of him being detained because he was a Tamil, held and questioned, did not give rise to the inference that the authorities believed him to have LTTE links. 32 Further, the primary judge considered that the "emblematic case" referred to in the UN Report did not give rise to any inference that, merely because a person was detained by the authorities and released shortly thereafter, they were suspected of being an LTTE affiliate. His Honour concluded that the Authority was entitled to not be satisfied of the appellant's claim that the authorities believed him to be an LTTE member by reason of his detention in the round up and release shortly thereafter (at [57]). 33 The primary judge also concluded that the Authority had not misunderstood the evidence arising from the questioning of the appellant as to the nature of his interrogation by the SLA and the CID (at [59]). 34 It is not necessary to consider the other grounds of review raised before the FCC which are not the subject of this appeal.

Context of decision 35 The decision which was the subject of review by the Authority was that of a delegate, tasked with considering the appellant's application for a Safe Haven Enterprise Visa. That task was carried out pursuant to s 65 of the Act. In particular, the delegate was obliged to perform the statutory function of being either satisfied or not satisfied the appellant met the statutory criteria for the grant of the relevant visa. In this case, the delegate concluded that he was "not satisfied", as a result of which s 65(1)(b) of the Act obliged him to refuse to grant the visa. 36 As both counsel before the Court acknowledged, the structure of s 65 is that the power to grant or refuse a visa is conditioned upon the existence of a particular state of mind. If the Minister is satisfied the visa applicant meets the relevant criteria, the power to grant the visa is enlivened. If the Minister is "not satisfied", the power to refuse is enlivened. It is now well recognised that those states of mind are jurisdictional facts of a subjective nature which condition the visa granting or refusing powers: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 654 - 655 [138] - [139]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1176 [59] - [60]; EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409 (EHF17); Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84 [23]; Ali v Minister for Home Affairs [2020] FCAFC 109 [39] - [44]. 37 Although the appellant's ground of appeal is articulated as being founded upon the proposition that the Authority's illogicality or irrationality in reaching its conclusion necessarily gave rise to a jurisdictional error, the path is not quite as direct as that. The true essence of the appellant's complaint is that, in conducting its review of the delegate's decision, the Authority concluded that it was not satisfied that the appellant met the statutory criteria in circumstances where it reached that state of a lack of satisfaction by proceeding upon an erroneous basis. The error relied upon is characterised as illogicality or irrationality in the fact finding process which must necessarily vitiate the putative formed state of non-satisfaction. If correct, that of itself does not lead to jurisdictional error. However, as the Authority concluded that the application for a visa must be refused pursuant to s 65(1)(b), that conclusion would, on the assumption that the appellant's submissions are correct, be based upon an incomplete or imperfect formation of the required state of mind. On that basis, the purported exercise of power to refuse the visa would be affected by jurisdictional error. 38 There is no doubt that the state of mind on which the power under s 65 is considered is examinable: Migrating Towards a Principled Approach to Reviewing Jurisdictional Facts (2020) 27 AJ Admin L 70. In particular, the putative state of mind may be vitiated by irrationality or illogicality in the decisional process: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS). 39 At present, the bar for establishing that a state of mind is vitiated by illogicality or irrationality is very high, in that the state of mind reached must be one which no rational or logical decision-maker could reach on the same evidence: SZMDS at 647 - 648 [130]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 [47]. 40 At a more granular level, there is an unresolved question that arises as to the impact of illogicality or irrationality in the reasoning process. In SZMDS, Crennan and Bell JJ appeared to accept that the test focusses on the conclusion reached and, if a logical or rational person on the material before the decision-maker could have reached the same conclusion, no relevant error would exist. At 648 [131], their Honours said: The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. 41 That "right result albeit wrong reasoning" approach echoes the principle underlying the nature of Wednesbury unreasonableness, in that it requires only that administrative decisions be "justifiable rather than justified". On the other hand, in circumstances where the legislature requires consideration of substantial material in forming a state of satisfaction or non-satisfaction, it could be said to be doubtful that the legislative intention was that a person's rights might be adversely affected by an illogical or irrational decisional process: EHF17 at 433 - 434 [84]. 42 In the present case, there was no dispute about the orthodox principles identified above.

Alleged illogicality 43 The appellant submitted that the vitiating illogicality arose in his case by reason of an erroneous fact finding whereby the Authority accepted that he had been detained and mistreated by the Sri Lankan authorities, but notwithstanding, then failed to conclude that he had thus been suspected by the Sri Lankan authorities as an LTTE affiliate. It was said that such a conclusion was not open in the light of the Country Information and was therefore illogical. 44 As the Minister submits, the appellant faces some difficulty in this case where the Authority's relevant conclusion is its state of non-satisfaction that he was considered by the Sri Lankan authorities to be associated with the LTTE or have links to it. In that respect, its conclusion is the absence of a sufficiency of evidence on that issue to satisfy it to the contrary. The Authority was not required to find that the appellant was not suspected by the Sri Lankan authorities as being unconnected with the LTTE, but merely that it was not satisfied that such was the case. That being so the appellant would have to demonstrate, on the material before the Authority, that no rational or logical decision-maker could be other than satisfied that the authorities did regard him as being associated with the LTTE. So much was accepted by the appellant's counsel at the hearing. 45 As the Minister submitted, although there is no legal onus on either party before the Authority, it was for the appellant to put forward evidence or arguments sufficient to demonstrate that he satisfied the criteria for the relevant visa: Hinton v Minister for Immigration and Border Protection (2015) 146 ALD 184 at 201 [70]. In that respect, the Authority was not required to uncritically accept any and all of the appellant's claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; and was not required to possess rebutting evidence before concluding that an assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348. 46 Ultimately, the substance of the appellant's submission must be that, as the Authority accepted that he was of Tamil ethnicity and that he had been detained for one day and one night and mistreated by the Sri Lankan authorities, its conclusion (or state of non-satisfaction) that those authorities did not perceive him to have LTTE affiliations was illogical. Primary support for this seemed to be based on the UN Report which identified that the Sri Lankan authorities had specific powers to arrest and detain persons suspected of involvement with the LTTE and the identified emblematic case involving the short detention of a critic of the government. It was also submitted that the Authority erred in basing its conclusion on the fact that, whilst in detention, the appellant was only questioned as to the involvement of T in the LTTE and not himself. He submitted that his evidence before the Authority was that he was also asked about his involvement with the LTTE. 47 With great respect to the careful and thoughtful argument advanced on behalf of the appellant, no illogicality or irrationality is made out. 48 Importantly, the Authority found that the appellant was initially suspected and detained by reason of his Tamil ethnicity which would have caused the Sri Lankan authorities to believe he might have an association with the LTTE. Indeed, that connection had been advanced by the appellant ([16] of the Authority's reasons). However, it had also concluded that he had not previously been involved in any LTTE organised forest conservation groups, such that there was no known actual association with the LTTE. 49 The Authority had accepted from the available Country Information that, between 2006 and 2008, there were "cordon and search" operations conducted in areas concentrated with Tamil populations. This harassment and arrest of the Tamil population was particularly prevalent during the civil war period. It was noted that persons who were arrested might be detained in rehabilitation centres for 12 months or up to two years. Again, these matters are not challenged. 50 The Authority then concluded that the appellant was detained for only one night and, although he may have been physically mistreated, he was questioned mainly about T who was not in detention. It also found that the appellant was not asked many questions about him personally and it was not satisfied that the Sri Lankan authorities continued to make enquiries about him after he was released. This latter finding was also not challenged. 51 In those circumstances, it was far from illogical or irrational for the Authority to conclude that, in the absence of any prolonged detention or interrogation of the appellant about his personal activities, it was not satisfied that the Sri Lankan authorities considered that he had significant links to the LTTE or was of any ongoing interest for that reason. 52 The appellant's submission that the Authority misstated the effect of his evidence before it should also be rejected. The Authority correctly analysed the effect of his testimony by saying that the authorities questioned the appellant "mainly" about T and there were not "many questions" about him personally. This was a fair analysis of the evidence. The relevant part of transcript from the hearing before the Authority, which is set out in the FCC judgment, reveals the Authority's conclusion was supported by the appellant's own comment, "I understood that they did not ask much questions from me". His evidence was, generally, to the effect that the questioning of him was generally about T, even if it also concerned him more indirectly. 53 At this basic level of fact finding, it could not be said that no logical or rational decision-maker could reach the conclusion which the Authority did. There was some evidence to support its conclusion and that is sufficient to eschew the existence of any relevant error. 54 As mentioned, the appellant also relied upon the circumstances referred to as the "emblematic case" which appeared in the UN Report. In particular, reference was made to paragraph 409 in the UN Report which stated: 409. An emblematic case, illustrative of the patterns described, is the disappearance of cartoonist Prageeth Ranjan Bandara Eknaligoda, who worked for Lankaenews. An outspoken critic of the Government, he disappeared in Colombo on 24 January 2010 during the presidential election campaign. According to information received by OISL, he was first arrested on 27 August 2009, by unidentified armed men travelling in a white van, and was released the following day, though he continued to receive anonymous telephone calls and believed he was being followed. On 24 January 2010, Mr Eknaligoda left his office in the evening, but never arrived at the place where he was supposed to meet a colleague. His fate and whereabouts have been unknown since then. Lankaenews' offices were searched by unidentified men without producing a warrant four days after Mr Eknaligoda had disappeared. 55 It was submitted that the Authority ought to have understood the circumstances there described as exemplifying the pattern by which political opponents were dealt with in Sri Lanka at the time such that, as the appellant was released after a short time, it would be expected that he would subsequently be abducted and killed. With respect, that particular paragraph from the UN Report can have no great significance in the present matter. To the extent to which it was identified as typifying those circumstances, it does not govern all cases and nor is it intended to. It does not logically follow from that case that a person who is detained for one night and released the following morning is perceived to be affiliated with the LTTE and would soon "disappear". That is particularly clear from the Country Information which identified that people were detained for differing periods of time. It would also lead to the conclusion that, in a "cordon and arrest" operation, the authorities would detain a person, ascertain that they had no involvement with the LTTE, and yet continue to detain them. That seems to be a most unlikely proposition. Indeed, the paragraphs in the UN Report preceding the one referred to above discussed "enforced disappearances" in the period between 2003 and 2008 without any mention of detainees being released but then recaptured and taken away. 56 Moreover, on a fair reading of the UN Report, it is apparent that the pattern relating to "enforced disappearance" to which reference is made concerned persons who were perceived as being critical of the government of the day. It is not possible to take the UN Report as identifying any general pattern in relation to all persons who were detained for questioning. 57 There was no illogicality or irrationality in the Authority relying on the appellant's short detention as indicative of the SLA's and CID's lack of suspicion of him as having an association with the LTTE. It was, with respect, the most natural conclusion which could have been drawn from the evidence. This aspect of the appellant's claim lacks merit and the primary judge did not err in failing to detect any error.

Failure to consider part of the appellant's case 58 The appellant relied upon the same circumstances in advancing a submission that the Authority failed to consider one of his claims (or an important integer of a claim). The relevant principles concerning such a ground are set out in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at 509 - 510 [18] and do not require repetition. In general, where material is overlooked, the fundamental issue to consider must always be its importance to the exercise of the statutory function and the seriousness of the error: ADU18 v Minister for Home Affairs [2020] FCA 366 [39]; Sing v Minister for Home Affairs (2020) 274 FCR 506 at 529 [93]. In that latter case, it was observed that if material is, in fact, taken into account but is misconstrued in its nature or effect, a constructive failure to have regard to a claim or material might arise. 59 The difficulty here is that the appellant claims the Authority did not have regard to his evidence that he was interrogated by the Sri Lankan authorities as to his involvement with the LTTE in addition to T's involvement in that organisation is unsupported. As discussed above, the Authority specifically took into account the appellant's claim that the Sri Lankan authorities regarded him as associated with the LTTE ([4] and [16] of the Authority's reasons), and it did not misstate the appellant's evidence in that regard. It correctly identified that the appellant was "mainly" questioned about T rather than the appellant's direct involvement. No argument advanced by the appellant or important part of his evidence was overlooked. 60 It might be added that, in the context of the Authority's discussion as to the treatment of Tamils in Sri Lanka prior to the end of the civil war and in the context of the UN Report, the whole point of the appellant's detention and questioning would undoubtedly have been to ascertain whether he was affiliated with the LTTE. That was at least implicit in the circumstances and accepted by the Authority which identified his claim that he had been detained because he was suspected of being so associated.

Materiality 61 Given the above conclusions, it is not necessary to consider the question of materiality. An error in the decisional process can only be material if it might realistically have resulted in a different outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 [45] - [46]. It is accepted that the party asserting a vitiating error has the obligation to establish that it was material. 62 In this case, the issue raised concerned an alleged error in failing to determine that the appellant was perceived by the Sri Lankan authorities as affiliated with the LTTE. Although no such error has been identified, the Minister, by his Counsel, very properly submitted that if such an error had been found it would not be possible to say that this is a clear case where a conclusion of an absence of materiality could be made.

Conclusion 63 From the foregoing it is apparent that the trial judge committed no errors in his analysis of the Authority's decision. His Honour correctly identified the absence of any vitiating error in the Authority's formation of its state of non-satisfaction. 64 It follows that the appeal must be dismissed with costs. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.

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