DMH17 v Minister for Immigration and Multicultural Affairs

1. Ground 2 asserts that Authority failed to observe s 473DA by failing to conduct the review in accordance with the requirements in Division 3 of Part 7AA. In other words, the applicant says there was no discretion available to the Authority to not consider the review material.
2. In respect of the first two grounds, the first respondent has identified the following three questions as arising for determination:

(a) whether the lack of reference to the letters in the Authority reasons, leads to an inference that the letters were not considered by the Authority;

(b) what is the consequence if the Court were to find that the Authority did in fact overlook or ignore the letters; and

(c) if the consequence is that the Authority erred, was that error material?

1. In relation to the first question, the first respondent accepts that the Authority did not expressly refer to the letters but contends that the lack of reference is not, in and of itself, a basis for the Court to conclude that the letters were not considered. The first respondent observes firstly that the Authority it had considered the review material provided by the Secretary at [3] (CB 191), and that it did not purport in its reasons to refer to all of that material either. The first respondent submits that the Authority was not required to refer to all the review material, citing Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166; (2018) 261 FCR 461 per McKerracher, Gleeson and Burley JJ.
2. The first respondent says it is most unlikely that, having had before it a relatively limited number of documents on the review, the Authority simply overlooked or failed to consider the letters. The Court is urged by the first respondent to infer that the Authority, having considered the letters, determined them to not be evidence upon which it drew its conclusions at [17]. The first respondent says this is because the letters were not, on their face, documents which compelled any particular conclusion about the applicant's claims to have been involved with EROS and, therefore, to have been the subject of adverse attention as a result thereof, citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
3. In respect of the issue at [18(b)] above the first respondent submits that the letters did not constitute "definitive proof" of the applicant's association with the organisation or the veracity of his protection claims. Therefore the first respondent says that, even assuming the Authority did fail to consider the letters, they were not of an important or critical nature to the review (citing VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 per Hill, Sundberg and Stone JJ at [77] and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 per Robertson J at [77], [98], [111], [112] and [117] to [122]) and as such the failure to consider them would not result in jurisdictional error.

1. The applicant bears the onus of establishing that the Authority overlooked the letters. For the reasons which follow, I am satisfied that he has not discharged that burden.
2. In EEI17 (supra) the Full Court of the Federal Court observed as follows at [49]:

...The obligation to give reasons is not commensurate with the obligation to consider the review material. Section 25D of the Acts Interpretation Act 1901 (Cth) applies to s 473EA of the Act; BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 (per Flick, Markovic and Banks-Smith JJ) at [47]-[49]. The IAA is not required to do more than set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered; see Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [32], [32] (French CJ, Kiefel J, Heydon J and Crennan J agreeing); BVD17 at [45]; AQR17 v Minister for Immigration and Border Protection [2018] FCA 901 at [14]- [15].

1. In XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 167; (2020) 280 FCR 535 per Perry, Banks‐Smith and Anderson JJ observed at [27] that a beneficial construction is to be adopted in construing the reasons of the decision‐maker, saying (footnote omitted):

...In this regard, it is well established that the reasons of an administrative decision‐maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 -272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287 )). As such, when it is said that such reasons should be read beneficially, ultimately this means that "a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying": Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044 at [14] -[15] (Allsop J (as his Honour then was)).

1. Undertaking the requisite, beneficial reading of the Authority's reasons for decision, and bearing in mind the aforementioned principles in EEI17 about the giving of reasons (specifically in an Authority context), it is tolerably clear that by the time the Authority reached its findings about the applicants' alleged involvement in EROS, the matters upon which it based its decision had been explained. In this regard I accept the first respondent's submission as summarised at [20] and [21] above and am not satisfied that the Authority has, in fact, overlooked the letters.
2. The Authority had, by the time it reached its conclusions at [17] of the decision set out significant discrepancies in the applicant's claims and evidence which culminated at [17] as being the bases for its rejection of his involvement with EROS. Those bases are those which are summarised at [8(a)] of the interlocutory judgment (see [3] above). Given the findings about the lack of harm to Mr X despite his allegedly higher profile in EROS, the various inconsistences in the applicant's accounts between written statements and his SHEV interview, and the late-raising of the petrol bomb claim, the Authority did not accept the applicant's claims regarding EROS to be credible to the extent that it found the applicant had fabricated them as a basis upon which to apply for protection. I am satisfied that finding was open to it.
3. It can be accepted that there are some cases in which a particular document is so obviously relevant or cogent to the consideration of claim that a failure to mention it will more likely signify that it was not considered that its absence from the reasons points to a failure by the decision-maker to consider that document, and in that way to fail to consider the claim that that document purported to support. I am not satisfied that the letters are documents of that kind such that it could be inferred from omission of reference to them in the reasons of the Authority that they were not considered: Cf SZRKT (supra) and VAAD (supra).
4. Having regard to the Authority's reasons read holistically, but more specifically its comprehensive findings rejecting the EROS claims, I am satisfied that the Authority did consider the letters but proceeded on the basis that they were not material to alter the anterior factual findings at [12] to [17] of the reasons of decision.
5. When regard is had to the content of the documents themselves, that conclusion is reinforced, in particular given that they are each reference letters, of reasonably generalised content and were proffered in clear contemplation of the applicant seeking asylum in Australia, being an exercise the Authority had already concluded was without legitimate basis in respect of the EROS claims.
6. Overall, I am not satisfied that the Authority overlooked the letters. Even if I am wrong about that, applying a counterfactual the letters could not realistically have resulted in the Authority recaching a different decision.

1. Ground 3 asserts that the second respondent did not properly to conduct its review because it failed to consider a claim (or an integer thereof) which, he says, squarely arose on the material. That claim was that upon return to Sri Lanka, he would continue his political activities to champion Tamil rights leading to a real chance of persecution, citing on SZSZW v Minister for Immigration and Border Protection [2015] FCA 562; (2015) 150 ALD 465 at [15] and Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42].
2. The applicant says that the finding that a claim or an integer is apparent is not to be made lightly and the claim must "clearly emerge from the materials, the claim must be based on "established facts", citing AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ. In submissions in-chief, the applicant pre-emptively contended that, if the first respondent were to seek to impugn ground 3 by asserting there were two separate and independent bases for decision, such an assertion was not supported by a reading of the Authority's reasons when read as a whole, citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 12 at [35], [41] and [46].
3. The first respondent says that no error of the kind alleged by ground 3 is apparent because the Authority expressly recognised that an aspect of the applicant's claim as to why he feared harm was that he would engage in similar political activity if he returned to Sri Lanka.
4. The first respondent also says that, while acknowledging it, the Authority did not need to address that aspect of the claim separately from the other aspects of the applicant's claims. Namely his claim that he was in the past an EROS member who had engaged in particular activities, was the subject of adverse attention, left Sri Lanka due to a fear of harm from political opponents), and that the Authority having expressly recognised that a feature of the applicants claim was that he would engage in similar political activity in Sri Lanka and then having rejected those applicant's claims (at [17]). It had to follow that it had also rejected his claim that if he returned to Sri Lanka, he would do so. Based on the Authority's findings, the first respondent submits that there was nothing to continue in circumstances where the applicant had been found to have fabricated his claims of political involvement and activity.

1. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) at [46] to [47], the Full Court of the Federal Court (French, Sackville & Hely JJ) said the following (emphasis added):

46. It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225; 180 ALR 1 at [87]-[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47. The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

1. I accept the assertion that the applicant claimed that he would return to Sri Lanka and would continue to be politically active did squarely arise on the material before the Authority, and that it was also identified in the Authority's reasons at [9] where it said as follows (emphasis added):

The applicant has consistently claimed he fears to return to Sri Lanka because he was threatened in the past for reason of his political opinion. He claims he was a member of the EROS. In August 2012, in the lead up to the Eastern Provincial Council elections, he carried out campaign work for about 2 weeks, which brought him to the attention of unknown Tamil paramilitary groups. The unknown Tamil paramilitary groups threatened to harm the applicant if he did not cease his pro-EROS campaign work. The applicant then went into hiding and left Sri Lanka illegally. The applicant told the delegate, if he returns to Sri Lanka, he will continue to be politically active - because Singhalese continue to treat Tamils as slaves in Eastern province.

1. The Authority was clearly not unaware that the applicant was making the claim in question.
2. However, as the first respondent submits the claim, or the aspect or integer of the claim, was not that the applicant will be a politically active simpliciter. Rather, it was that the applicant would continue to be politically active, "because Sinhalese continue to treat Tamils as slaves in Eastern province". The applicant was advancing a claim that if he were to return to Sri Lanka, he would continue that which he had undertaken in the past in terms of alleged political activity. For the reasons already outlined in respect of grounds 1 and 2 above, the difficulty for the applicant on that regard is that the Authority found he fabricated those political claims.
3. Accordingly, there was nothing, as a matter of fact based on the findings of the Authority, for the applicant to continue. It had rejected the applicant's past political activity as having been fabricated. Accordingly, and as is expressed in Applicant WAEE (supra) at [47], the Authority had rejected the factual premise upon which the applicant's contention rests. The Authority did not have to make a separate finding after [17] to assess whether the applicant would resume political activity on return, having rejected those earlier claims.
4. The ground does not establish error.

1. The applicant has not established the errors alleged by the Amended Application. Absent jurisdictional error, the decision is a privative clause decision, and the application must be dismissed. I will so order.
2. I will hear the parties as to costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.