FUS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The Authority's decision 9 The Authority accepted the following claims made by the appellant: (1) those concerning his experiences during the time of the Sri Lankan conflict; (2) those concerning his dealings with the SLA after the conflict, that he was stopped and questioned by the SLA during his trips to areas to clear mines while he was working with HALO and that he was detained by the SLA until HALO secured his release; (3) that the SLA entered the appellant's home and searched for arms and LTTE material; and (4) that there was still some suspicion of the appellant because of his Tamil ethnicity and his work with HALO. 10 The Authority was not satisfied that the SLA would have suspected that the appellant had any involvement with the LTTE. It found that the appellant may have been wanted by the SLA or CID for routine questioning but that he would have been released, as had been the case when HALO intervened, without being harmed. The Authority was of the opinion that the appellant did not have a profile that would have attracted the attention of the Sri Lankan authorities including the SLA or the CID. 11 After considering country information and the appellant's claims, including that he and his family had only worked for the LTTE in small roles, the Authority concluded that the appellant does not face a real chance of harm from any Sri Lankan authorities on the basis of being a Tamil from the Northern Province or from an area formerly controlled by the LTTE, on the basis of any suspicion of involvement with the LTTE or because of his employment with HALO. 12 The Authority concluded that the appellant did not satisfy the requirements of s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the Delegate's decision not to grant a SHEV.

The Federal Circuit Court proceeding 13 The appellant filed an application for judicial review of the Authority's decision with the Federal Circuit Court. In his amended application filed on 23 April 2018 the appellant raised the following grounds: 1. The Authority did not have authority to review the delegate's decision under s 473CC Migration Act 1958 (the Act) as the Minister had not validly referred the decision to the Authority under s 473CA of the Act. Particulars a. Section 473CA requires the Minister to refer a fast track reviewable decision to the Authority as soon as practicable after the decision is made. b. Section 67 of the Act requires the Minister to make a record of a decision to refuse to grant a visa, and that the record must state the day and time of its making, and that the decision is deemed to have been made on the day and at the time the record is made, such that the Minister is functus officio only after the Minister has stated the day and time on the decision record. c. The delegate's decision did not comply with s 67(2) in that it did not state the time of its making. d. The valid exercise of the Minister's obligations under s 473CA to refer a fast track reviewable decision was conditional upon the Minister's compliance with s 67. Further or in the alternative: 2. As a result of the Minister's failure to comply with s 67(2), the Authority could not determine whether any material provided to it by the Secretary under s 473CB(l)(c) of the Act was 'new information', and as a result it was not in a position to comply with s 473DD of the Act not to consider any 'new information'; nor was it able properly to consider the exercise of the discretions Particulars a. Section 473DC(l) of the Act defines 'new information' to be documents or information that were not before the Minister when the Minister made the decision under s 65. b. Section 67(3) provides the Minister's decision is taken to have been made on the day and at the time the record is made. 14 In the amended application the appellant sought the following relief: 1. An order that the decision of the Immigration Assessment Authority be quashed. 2. An order the first respondent Minister pay the Applicant's costs. 3. Any further or other orders that the Court thinks fit. 15 On 23 May 2018, the day after the hearing in the Federal Circuit Court, the appellant filed a proposed further amended application in response to a submission made by the Minister that the relief sought in the amended application did not affect the Authority's decision and thus did not involve the court's jurisdiction. The only amendments made in the proposed further amended application were to the relief sought by adding two further prayers for relief as follows: 2. An injunction to issue restraining the Minister from acting upon the decision of the Immigration Assessment Authority. 3. A writ of mandamus to issue compelling the Minister to determine the applicant's application for a Safe Haven Enterprise (subclass) 790 visa according to law. 16 Before turning to the reasons of the primary judge it is convenient to set out s 66 and s 67 of the Act which relevantly provide: 66 Notification of decision (1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. (2) Notification of a decision to refuse an application for a visa must: (a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify that criterion; and (b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa - specify that provision; and (c) unless subsection (3) applies to the application - give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and (d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 - state: (i) that the decision can be reviewed; and (ii) the time in which the application for review may be made; and (iii) who can apply for the review; and (iv) where the application for review can be made; and (e) in the case of a fast track reviewable decision - state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and (f) in the case of a fast track decision that is not a fast track reviewable decision - state that the decision is not subject to review under Part 5, 7 or 7AA. … 67 Grant and refusal of visa - how and when (1) The following decisions are taken to be made by the Minister causing a record to be made of the decision: (a) a decision to grant a visa; (b) a decision to refuse to grant a visa. (2) The record must state the day and time of its making. (3) The decision is taken to have been made on the day and at the time the record is made. (4) The Minister has no power to vary or revoke the decision after the day and time the record is made. (5) Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4). 17 Because the issues raised by the appellant concerned an alleged failure to comply with s 67 of the Act, the Minister relied on evidence before the primary judge which described the databases maintained for the purpose of applications for certain visas and the steps taken by a delegate of the Minister when a decision is made to refuse the grant of a visa. That evidence established that the Department maintained two databases relevant to the making of decisions to grant or refuse visas: the Integrated Client Services Environment system (ICSE) and the Total Records Information Management system (TRIM). Having regard to the evidence relied on by the Minister, at [27] the primary judge made the following findings: The system followed by delegates when refusing a visa application is: 1. a delegate prepares written reasons for his or her decision in the format of a "Protection Visa Decision Record"; 2. the delegate records the refusal decision as an event in ICSE; 3. once a Protection Visa Decision Record is prepared, it may either be saved into TRIM and printed or attached in electronic form to the notification of refusal letter through the Department's Enterprise Correspondence System (ECS); 4. the delegate prepares the notification of refusal letter through the ECS; 5. the delegate collates the letter, the written reasons for decision and any other relevant documents to be sent to the visa applicant, and places them in a registered post envelope for dispatch, which displays the registered post tracking number; 6. the delegate records the registered post tracking number onto ICSE and/or saves a copy of the registered post envelope (which shows the registered post tracking number) onto TRIM. 18 At [28]-[29] her Honour made the following findings in relation to the decision of the Delegate to refuse the appellant's application for a SHEV: (1) a screenshot from the ICSE database showed that a notification of refusal letter was generated on 21 April 2017 at 11:09:36, a letter was sent to the appellant in Australia on that date and a registered post reference identifier was recorded; and (2) a second screenshot from the ICSE database showed the following: Event: Refused Qualifier: s36(2) Not Satisfied Effect Date: 21/04/2017 Effect Time: 11:01 19 The primary judge noted that the grounds and particulars included in the appellant's amended application were the same as those relied on in DQX16 v Minister for Home Affairs [2018] FCCA 1915 (DQX16). At [46]-[47] her Honour referred to the decision in DQX16 as follows: 46. As his Honour said of the applicant's arguments on the same grounds in DQX16 at [18]: 18. These arguments fail at the threshold. Whilst the statement of reasons prepared by the delegate pursuant to s.66 of the Act did not state the time when the decision was made, there was a record made of the decision which did. That record complied with s.67. The applicant has not established the matter critical to his arguments and so the application must be dismissed. 47. His Honour referred to the ICSE database screenshots stamped with effect time and date in evidence before him, which are, relevantly, the same kind of information and detail as is in evidence before me (but with the details specific to this Applicant) (see DQX16 at [27]−[28]). His Honour concluded at [29]: 29. ... I am satisfied that, upon making of the decision to refuse the applicant a protection visa, a record was made of that decision stating the date and time of the making of the decision. The error in the applicant's argument was to mistake the written reasons for the delegate's decision prepared under s.66 of the Act for the record made of the decision under s.67 of the Act. In those circumstances, s.67 of the Act was complied with and the issues raised by the applicant do not arise. On any view of the operation of ss.65 and 67, the decision was "made" within the meaning of s.473CA and s.473CB by 13:05 on 8 September 2016. A letter from the Authority to the applicant establishes that the matter was referred to the Authority on 14 September 2016, after the decision was made. 20 The primary judge concluded that the facts of the matter before her compelled the same conclusion as was reached in DQX16. Her Honour found that, upon the making of the ICSE database record, the Delegate's decision became final such that the Delegate could not vary or revoke that decision, that the record of time and day of the decision entered in the ICSE database satisfies the requirements of s 67(3) of the Act and that the decision was "made" within the meaning of s 473CA and s 473CB by 11.01 am on 21 April 2017: FUS17 at [48]-[49]. 21 The primary judge concluded that the proposed further amended application would be futile and refused leave to file it and dismissed the amended application: FUS17 at [50]-[51].

The appeal 22 On 29 May 2019 the appellant filed a notice of appeal in this Court which raises three grounds of appeal (as written): 1. That there is a jurisdictional error in the Federal Circuit Courts decision. 2. The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent's recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational. 3. Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed. 23 As is evident from the third ground of appeal, at the time of the commencement of the appeal, the appellant was not legally represented. That remained the case as at the date of the hearing. No further grounds of appeal were articulated by or on behalf of the appellant. Nor did the appellant file any written submissions in support of the grounds of appeal. At the hearing the appellant made the following oral submissions. 24 The appellant submitted that the Authority's reasons were neither logical nor rational. He referred to [24] of the Authority's reasons where the Authority said, when addressing the appellant's Tamil ethnicity, that "DFAT indicates that since the end of the conflict and the change in Government in Sri Lanka, the situation has improved markedly for Tamils". The appellant contended that the Authority had not considered what would happen if "the present prime minister Rajapaksa" comes into power to "people of my calibre". He said that since the new government has come to power the Tamil community has faced many problems and that by not "accepting [these] facts" the Authority made a "grave mistake".

Consideration 25 By his first ground of appeal the appellant asserts "jurisdictional error" on the part of the Federal Circuit Court. As the Minister points out this characterisation is inapt in an appeal from that court under s 25 of the Federal Court of Australia Act 1976 (Cth). Putting that to one side, I will, in the circumstances, treat this ground as an assertion of error on the part of the primary judge in dismissing the grounds of review raised before her Honour. The ground framed in that way cannot succeed. There is no error in the decision of the primary judge. 26 The primary judge found, based on the facts before her, that the entry by the Delegate into the ICSE database of the details set out at [18(2)] above was the record for the purposes of, and satisfied the requirements of, s 67 of the Act. That is, a record was made of the Delegate's decision stating the day and time of the making of the decision. Based on that record, the decision was made at 11.01 am on 21 April 2017. 27 In coming to this conclusion and rejecting the grounds of review before her the primary judge followed the decision in DQX16. An appeal from DQX16 was dismissed: see DQX16 v Minister for Home Affairs [2019] FCA 1705 (DQX16 Appeal). In DQX16 Appeal, because the appellant was not legally represented before him, Moshinsky J considered the contentions relating to s 67 of the Act that were relied on before the primary judge in that case notwithstanding that the issue had not been raised on appeal. At [34]-[36] his Honour said: 34 As noted above, the appellant's case before the primary judge was that, in non-compliance with s 67, the delegate's decision failed to state the day and time of its making, with the result that no decision had been validly made by the delegate. It was contended that there was, therefore, no decision to refer to the Authority for review (under s 473CA) and the Authority was also unable to properly determine the operation of ss 473DD and 473DE. 35 A similar argument was considered, and rejected, by Burley J in AEW18 v Minister for Home Affairs [2019] FCA 208 (AEW18), handed down shortly after the appeal hearing in the present matter. Burley J's reasons for rejecting the argument are set out at [35]-[42]. In particular, his Honour reasoned at [37]-[39]: 37 Section 67(1) provides that a decision to grant or refuse a visa are taken to be made "by the Minister causing a record to be made of the decision". Sub-section 67(2) requires that the record must state the day and time of its making. By sub-section 67(3) the decision is taken to have been made on the time and date that the "record" was made. Subsection 67(4) gives the evident reason for precision in maintaining the record, by providing that after that day and time the Minister has no power to vary or revoke the decision. 38 It may be noted that there is a material linguistic distinction between the s 66(2)(c) requirement for the provision of "written reasons" and the s 67(1) requirement that the Minister cause a "record" to be made of the decision. It is the day and the time of the making of the record of the decision, not the written reasons, that s 66(2) requires. The Minister submits that the word "record" is to be given its ordinary English meaning of "a written or otherwise permanently recorded account of a fact or event" (citing the Shorter Oxford English Dictionary, 6th ed, 2007), the fact or event here being the decision to grant or refuse a visa. This is to be contrasted with the "written reasons" identified in s 66. The Minister relies on an affidavit given by an assistant director of the Protection Assessment NSW Section, Humanitarian Program Operations Branch of the Department of Home Affairs, which was admitted into evidence before the primary judge. The affidavit explains that the practice of the Department is to create a permanent record in a database of the fact of a decision having been made under s 65 in relation to a visa application together with the time and day of the decision. The evidence indicates that such a record was created in respect of the decision of the delegate. 39 I accept that the ordinary meaning of the word "record" proposed by the Minister accords with the statutory scheme and suitably defines the subject matter of s 67(1). By creating in the database an entry specifying the day and time of the decision to refuse to grant the appellant's visa, the Minister satisfied his obligations under s 67(2). In this context, the absence of a date and time on the written reasons provided by the delegate is irrelevant. 36 These reasons are equally applicable to the present case. In the present case, as in AEW18, there was evidence that a record was created in a database of the fact of the decision having been made. For the reasons set out by Burley J in AEW18, the primary judge was correct to reject the appellant's contentions regarding s 67. (Original emphasis.) 28 Those reasons also apply to this case. There was evidence before the primary judge that a record was created in the ICSE database of the fact of the decision having been made which recorded the time and day on which it was made. Thus the Minister satisfied his obligations under s 67(2) of the Act. The absence of a time on the Decision Record is not relevant to the operation of s 67. 29 In AEW18 v Minister for Home Affairs [2019] FCA 208 (AEW18) Burley J also considered and rejected an argument made by the appellant in that case that, by reason of a failure to create a record of a decision, the decision was invalid. At [40]-[41] of AEW18 his Honour relevantly said: 40 … Caution should be exercised in concluding that a referral of an administrative decision for review was invalid on the basis of a technical deficiency. In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481 the High Court considered the nature of a fast track reviewable decision under Part 7AA of the Act. It said at [39], [52] (per Gageler, Keane and Nettle JJ, emphasis added): 39 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd has been aptly described as a "landmark decision" in the early history of the Administrative Appeals Tribunal. The Full Court of the Federal Court there construed the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) to a "decision" in respect of which an enactment might provide for review by that Tribunal as a reference to nothing more than "a decision in fact made, regardless of whether or not it is a legally effective decision". The fundamental reason for adopting that construction was fulfilment of the evident legislative purpose of the conferral of jurisdiction on the Tribunal "to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task": "[i]f administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review" and "technicality would be introduced at the outset". In the context of the Administrative Appeals Tribunal, that construction has not since been doubted. … 52 The limitations on the form of review for which Pt 7AA provides are in the end insufficient to warrant departure from the Brian Lawlor construction. Applying that construction, a fast track reviewable decision triggering the operation of the Part and forming the subject of the Authority's review is a decision made in fact to refuse to grant a protection visa to a fast track applicant, regardless of whether or not that decision is legally effective. 41 Section 473CA requires the Minister to refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. Section 473BB relevantly defines a fast track reviewable decision to be a fast track decision in relation to a fast track review applicant. The contention advanced by the appellant in the present case is based on the premise that by reason of the failure of the delegate to record the time and date on the written reasons accompanying the notification of the decision outcome, no "fast track reviewable decision" has been made, and accordingly the IAA had no power to make its decision. However, as the High Court records in Plaintiff M174, it is the decision made in fact to refuse to grant a protection visa to a fast track applicant that is the trigger for the operation of Part 7AA. That decision is made pursuant to s 65 of the Act. This trigger operates regardless of whether or not that decision is legally effective. … (Original emphasis.) 30 Although the primary judge did not dispose of the matter before her on that basis because she did not need to, those observations would apply equally to this case and would provide an alternate basis for disposing of the grounds raised before her Honour. 31 The second ground of appeal is an assertion that the reasons of the Authority "were neither logical nor rational". This ground was not raised before the primary judge and leave is required to raise it for the first time on appeal. 32 In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (VUAX) a Full Court of this Court observed at [46] that leave to raise a new ground on appeal should only be granted if it is expedient in the interests of justice to do so. At [48] the Court said: The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 33 There has been no explanation by the appellant for the failure to raise the proposed ground below. The appellant was legally represented before the primary judge and no argument, beyond those relying on s 67 of the Act, was raised that there was otherwise any error in the decision of the Authority. 34 Putting that to one side, the proposed ground has no merit. As framed, it is a bare assertion, general in nature and not particularised. The appellant does not identify how it is that the decision of the Authority is said to be illogical or irrational. 35 In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [49] Wigney J recognised that there may be circumstances where illogicality or irrationality in a decision-making process may justify a finding for an underlying jurisdictional error and that a decision based on irrational or illogical reasoning or factual findings is likely to be legally unreasonable and beyond power. At [50], [52] and [54]-[56] his Honour said: 50 As was made clear by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647-648 [130]-[132], however, not every lapse in logic in the decision-making process will result in jurisdictional error. If particular findings or reasoning on the way to the decision-maker's ultimate conclusion and decision are challenged on the basis of illogicality or irrationality, jurisdictional error will not be made out unless it is shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker. At 648 [131] their Honours said: What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. 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. … 52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality or irrationality must be shown, "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions". And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion. … 54 ... The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings "on the way" to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62]. 55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67]. 56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal's findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned. 36 In oral submissions, the appellant gave some meaning to the ground as pleaded by his contention that the Authority ignored the current situation in Sri Lanka when making the finding at [24] of its reasons that the situation for Tamils in Sri Lanka has improved. At [24] the Authority refers extensively to country information. It is well established that the choice of, and weight given to, country information is a matter for the tribunal itself as part of its fact finding: see NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]. It is apparent that the Authority based its findings about the situation for Tamils in Sri Lanka on country information which, as I have observed, it referred to in detail at [24] of its reasons. Its conclusion was open to it based on the materials to which it had regard. The Authority's findings at [24] were neither illogical nor irrational. 37 There is no merit in the proposed ground. As the Minister submitted the interests of the administration of justice do not require a grant of leave to raise the second ground.

Conclusion 38 It follows from the matters set out above that the appeal should be dismissed. As the appellant has been unsuccessful he should pay the Minister's costs as agreed or taxed. I will make orders accordingly. 39 The Minister also seeks an order that his name be amended for the purpose of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. An order to that effect will also be made. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.