FEDERAL COURT OF AUSTRALIA

EKW17 v Minister for Immigration and Border Protection [2018] FCA 1366

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent as assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. On 20 March 2018, the primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority. The Authority had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of a particular type of protection visa known as a Safe Haven Enterprise (subclass 790) visa (SHEV) to the appellant.

2    The appellant is an ethnic Tamil of the Hindu faith, born in Tamil Nadu in India. His family went from Sri Lanka to India due to war in 1991. They returned to Sri Lanka in 1994 and lived in a refugee camp until 2006 and thereafter in a village under the control of the Sri Lankan Army. The events upon which the appellant’s protection visa claims were based were said to have taken place in the period between 2010 and 2012.

3    On 10 September 2012, the appellant arrived in Australia as an unauthorised maritime arrival. On 11 December 2015, he was invited to apply for a SHEV. On 16 June 2016, he lodged an application for a SHEV. In a detailed statement accompanying his SHEV application, the appellant claimed to fear harm from Sri Lankan police, the Sri Lankan Criminal Investigation Department (CID) and Sri Lankan government authorities on the basis of his membership of the following six different social groups:

a)    membership of the social group of people who are suspected to have been a member of the Liberation Tigers of Tamil Eelam (LTTE);

b)    membership of the social group of people who were involved with the Tamil National Alliance (TNA);

c)    membership of the social group of people who have been targeted by the CID;

d)    membership of the social group of people who have been targeted by the police; and

e)    membership of the social group of people who do not have a Sri Lankan identity card; and

f)    membership of the social group of failed asylum seekers forcibly returned to Australia.

4    On 9 December 2016, a delegate of the Minister refused the grant of a SHEV to the appellant. In large measure, the appellant’s historical claims were accepted. However, the delegate found that:

(1)    there was no information to suggest that the appellant was holding an imputed LTTE profile in the eyes of the Sri Lankan authorities;

(2)    the appellant’s own description of his political involvement and the limited geographical scope and time frame of his activity led to the conclusion that he was not engaged in political activities in Sri Lanka at a level that gave him any significant profile in the local community;

(3)    on the basis of the appellant’s testimony and the evidence he provided, it was accepted that he had experienced four instances of harassment and intimidation at the hands of the police and an unidentified paramilitary group in 2011-12, but it was not accepted that he was of adverse interest to the CID/Sri Lankan Army (SLA) due to his imputed political opinion or any other reason;

(4)    there was not a real chance that the appellant would face persecution for reasons associated with his Tamil race or his imputed political opinion based on his race;

(5)    there was not a real chance that the appellant would be pursued and seriously harmed by any persons in Sri Lanka on account of his association with the TNA;

(6)    while he may be suspected of departing Sri Lanka illegally and may be charged with an offence should he return, any action against him will be the result of the general application of rules and law, rather than persecution; and

(7)    there were no substantial grounds for believing that there was, upon his return to Sri Lanka, a real risk of his being subjected to significant harm for any of the reasons discussed by the delegate, such that there were no complementary protection obligations.

Before the Authority

5    On 14 December 2016, the delegate’s decision was automatically referred to the Authority for a limited form of review. The Authority conducts reviews of protection visa refusals in relation to “fast track” applicants, being protection visa applicants who arrived by boat after 13 August 2012 and before 1 January 2014. The Authority does not have the power to grant protection visas, but only to either affirm the delegate’s decision or refer the case back to the Minister’s Department for further consideration, such as after making a finding that the applicant is a refugee.

6    Written submissions were provided to the Authority on behalf of the appellant, in conjunction with a number of newspaper articles. The Authority treated the components of that material that responded to the delegate’s decision as argument rather than as information, including the references in the material to the country information and claims that were before the delegate and thus before the Authority. However, the Authority also considered some components of both the submissions and the newspaper articles to be new information that was not before the delegate. In deciding whether to consider that new information, the Authority was not satisfied that it met the requirements of s 473DD(b)(i) or (ii) of the Migration Act 1958 (Cth), nor that any exceptional circumstances applied under s 473DD(a) so as to warrant taking it into account. As a result, that new information was not considered. However, the Authority did have regard to new information that it had separately obtained in the form of additional country information, being satisfied that there were exceptional circumstances warranting it doing so.

7    The Authority summarised the appellant’s claims in some detail. No direct issue has been taken by the appellant, either before the primary judge or on appeal to this Court, with how the Authority dealt with the appellant’s claims and the material advanced in support of those claims, including the country information that was before both the Authority and the delegate. Rather, the focus of the appellant’s challenge has been on:

(1)    the additional country information that the Authority obtained and had regard to; and

(2)    the Authority’s refusal to have regard to the new information proffered on behalf of the appellant, including the process by which that decision was made and the lack of any opportunity being given to the appellant to comment upon that decision.

8    In those circumstances, it suffices to reproduce the paragraphs of the Authority’s reasons dealing with that material as follows:

3.    On 6 January 2017 the IAA received a submission from the applicant. The submission contains arguments responding to the delegate’s decision. I am satisfied this may be described as ‘argument’ rather than information. In part, the documents also reference country information and claims that were before the Ministerial delegate and are already before me.

4.    However the submission also contains new information which was not before the delegate. This includes information from a May 2016 article from the World Socialist Website alleging that arrests of Tamil youths have not decreased and that the President and Prime Minister are falsely claiming that a democratic environment has been established. The submission also provides new information about new terrorist groups such as the ‘Awa’ which are purportedly linked to the Sri Lankan Army and paramilitary groups, and new information purportedly discussed in a 2016 Parliamentary session about there being 12 000 un-rehabilitated LTTE militants remaining in Sri Lanka. No explanation has been provided as to why the article and other new information could not have been provided prior to the delegate’s decision. There is no indication from the article or information provided as to why this is credible personal information and no such explanation has been provided by the applicant. I am not satisfied that either s.473DD(b)(i) or (ii) is met and nor am I satisfied that any exceptional circumstances apply. I have not considered this information.

5.    I have obtained new information, specifically information on the treatment of Sri Lankans of Tamil ethnicity and citizens who have departed Sri Lanka illegally and sought asylum abroad from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017. The delegate relied on the then current 18 December 2015 DFAT report for Sri Lanka and the 2017 report was only published after the delegate’s decision. I am satisfied that there are exceptional circumstances to justify considering this new information.

Before the primary judge

9    By an amended application for judicial review, the appellant advanced the following grounds of review before the primary judge:

1.    The IAA erred in not providing the new information obtained, in the DFAT Country information report to the applicant in accordance with s473DE of the Act and erred in treating the information as falling within the exception created by s 473DE(3)(a).

2.    The IAA’s failure to invite the applicant in writing or at an interview, or to consider doing so, as was within its power pursuant to s473DC(3)(b) of the Act, was unreasonable in the legal sense.

Particulars

a.    On 6 January 2017 the IAA received a submission from a registered migration agent on behalf of the applicant comprising of the following information:

i.    The submission referred to a May 2016 article from the World Socialist Website which pre-dates the delegate’s decision; and

ii.    The submissions provided information about new terrorist groups and un-rehabilitated LTTE militants remaining in Sri Lanka.

b.    The IAA found at [4] the IAA was not satisfied that the new information was credible personal information and no explanation was provided by the applicant and consequently did not satisfy either s.473DD(b)(i) or (ii); and

c.    The discretion in s473DC(3) of the Act exists to be exercised in an appropriate case to make the correct or preferable decision. The failure to exercise or consider exercising the relevant power to allow the applicant to comment on the above findings is unreasonable in a legal sense.

10    After summarising what transpired before the Authority in some detail, and after reproducing the above grounds of review, the primary judge dealt with those grounds rather sparsely in an ex tempore judgment as follows (emphasis in original):

Ground 1

21.    In relation to ground 1, the DFAT updated country information is information the Authority was entitled to obtain under s 473DE(3)(a) of the Act. The Authority was not required to give the applicant an opportunity to comment or respond to that information. The Authority was correct in identifying that the DFAT report as country information under the provisions of s473DE(3)(a) of the Act. No jurisdictional error is made out by ground 1.

Ground 2

22.    In relation to ground 2, there was no request in the submission for the applicant to be the subject of an interview and accordingly, there was no jurisdictional error by reason of the Authority not exercising the power under s 473DC of the Act in the circumstances of the present case. No fact has been pointed to which would make the Authority’s failure to invite the applicant to attend legally unreasonable.

23.    Insofar as ground 2 seeks to agitate alleged error under s 473DD of the Act, in the present case it is apparent that the Authority, in respect of the new information, took into account both limbs of s 473DD of the Act and there is nothing on the face of the Authority’s reasons to support that the Authority adopted an erroneously narrow meaning of exceptional circumstances. No jurisdictional error is made out by ground 2.

24.    As the application fails to make out any jurisdictional error, the application is dismissed.

11    It may be observed that the primary judge’s treatment of ground 2 only dealt with the complaint as to the failure to invite the appellant to an interview, and did not in any way address the aspect of that ground that asserted a failure to invite him to give new information in writing. The usual course dictated by longstanding authority would be to remit a ground that was not addressed back to the Federal Circuit Court. Recent Full Court authority suggests principled reasons for not doing so in some cases: see BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [30]. Following BZD17, I have concluded that it would not be in the interests of justice to remit that residual issue, and, rather, that it should addressed by these reasons, largely because the conclusion reached as to an interview must be the same as for information provided in writing.

Appeal to this Court

12    On 6 April 2018, the appellant filed a notice of appeal to this Court with the following grounds (verbatim):

1.    His Honour erred in not finding that the IAA failed to comply with the requirements of section 473DE of the Act in relation to new information it obtained being the January 2017 DFAT country report by treating that information as falling within the exception created by paragraph 473E(3)(a).

2.    His Honour erred in not finding that the IAA’s failure to exercise or to consider exercising its discretion to invite the applicant to give new information in writing or at an interview pursuant to section 473DC(3) was legally unreasonable. IAA was not satisfied that the new information submitted by the applicant met subparagraphs 473DD(b)(i) or (ii) and did not exercise its discretion to invite the applicant comment on those findings.

13    In substance, the above grounds of appeal replicate the grounds of review that were before the primary judge, and assert appellable error by reason of his Honour not upholding those review grounds.

14    The appellant did not file any written submissions. Nor did he make any oral submissions beyond an apparently heartfelt plea as to the merits of his case, which cannot be considered by this Court as that does not fall within the ambit of either its judicial review or appellate function.

Ground 1 – asserted failure by the Authority to comply with s 473DE of the Migration Act

15    The Minister accurately characterises this ground as being a contention that the Authority failed to comply with the requirements of s 473DE of the Migration Act in relation to new information it obtained, namely the January 2017 DFAT country report, by treating that information as falling within the exception created by s 473DE(3)(a) of the Migration Act.

16    Section 473DE of the Migration Act relevantly provides as follows:

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

(i)    in writing; or

(ii)    at an interview, whether conducted in person, by telephone or in any other way.

(2)      The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3)      Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b)    is non-disclosable information; or

(c)    is prescribed by regulation for the purposes of this paragraph.

Note:    Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

17    The Minister submits that the primary judge and the Authority correctly found that the requirements of s 473DE of the Migration Act did not apply to the January 2017 DFAT country report as it fell within the exception in s 473DE(3)(a). That is because, the Minister submits, the country report is clearly not information “specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member”. In support of that conclusion, the Minister relies upon the single judge authority of CKG16 v Minister for Immigration and Border Protection [2018] FCA 362 at [15] per Rares J and ADE17 v Minister for Immigration and Border Protection [2018] FCA 282 at [12] and [17] per Gleeson J, in which it was accepted that the Authority has no obligation to inform a review applicant of country information of the kind referred to in s 473DE(3)(a).

18    The Minister also relied upon the consideration by the High Court of the similar phrase, “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”, in s 424A(3)(a) of the Migration Act in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [91] (emphasis added):

Thirdly, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides (s 424A(1)) that the Tribunal must give an applicant “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. But that obligation is subject to qualifications. In particular, it does not extend (s 424A(3)(a)) to information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.

19    It is apparent that the omission identified by the High Court in Plaintiff M61 has been rectified in relation to the Authority by the similarly worded s 473DE(3)(a).

20    The Minister’s submissions in relation to this ground must accordingly be accepted. The primary judge was correct. The plain words in s 473DE(3)(a) mean that the Authority was under no obligation to furnish to the applicant country information of a kind that passes the threshold of exceptional circumstances in s 473DD(a). This ground of appeal must therefore fail.

Ground 2 – asserted legal unreasonableness on the part of the Authority in not inviting the appellant to give new information pursuant to s 473DC(3) of the Migration Act

21    The Minister accurately characterises this ground as being a contention that it was legally unreasonable for the Authority to fail to exercise, or to fail to consider exercising, its discretion to invite the appellant to provide new information in writing or at an interview pursuant to s 473DC(3), in circumstances in which the Authority was not satisfied that the new information that had previously been provided by the appellant met subparagraphs 473DD(b)(i) or (ii) and did not exercise its discretion to invite the appellant to comment on those findings. That contention rests upon it being found that the Authority failed to exercise, or failed to consider exercising, its discretion at all.

22    The Minister submits that the appellant’s case, upon closer examination, is not assisted by the Full Court’s decision in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475. In that case, it was held that it was legally unreasonable in the particular circumstances of the case before it, and particularly where the Authority knew that it did not have information concerning the respondent’s relocation to Beirut and that the respondent was likely to have such information, for the Authority to not get new information from the respondent. In that case, relocation had not been considered by the delegate at all, such that there was no information or evidence before the Authority on that question. It was in this particular context that the Full Court concluded that the Authority in CRY16 had “disabled itself” from considering the question of relocation, because, on the facts of the case, it knew that the respondent was likely to have information that would illuminate consideration of the question and, by extension, the Authority’s discharge of its review function. The Minister submits that the basis for finding legal unreasonableness in CRY16 was therefore narrow and confined, was not readily applicable to a different circumstance and was readily distinguishable.

23    The Minister submits that the appellant’s case may be seen to involve an assertion that the Authority was under an obligation, or at least had a discretion, to put to the appellant its prospective findings in respect of its determination under s 473DD. However, the Minister submits that there is no such duty or discretion which requires or permits the Authority to put to an applicant, or invite comment upon, an Authority’s prospective findings under s 473DD in relation to new information. While there is a requirement in s 473DE(1) that the Authority give particulars of new information to an applicant, that duty arises only if the information has been or is to be considered by the Authority under s 473DD, and if the information would be the reason or a part of the reason for affirming the fast track reviewable decision. The Minister submits, correctly, that there is no correlative duty imposed upon the Authority to invite comment on prospective findings as to why new information is not to be considered by the Authority due to its non-satisfaction of the matters set out in s 473DD(a) and (b).

24    The Minister submits that as there is no discretion, let alone duty, for the Authority to put its prospective findings under s 473DD to an applicant, it cannot be the case that the Authority failed to exercise, or to consider exercising, a discretion in a manner that was legally unreasonable. The Minister submits that this is consistent with the observations of the Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, in which it was said that:

72    In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

73    We would not however approach the resolution of the appeal by considering whether or not the delegate’s decision indicated that all aspects of the appellant’s credit were at issue in the Authority’s review. That is to view the procedure through a natural justice lens.

74    We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.

75    There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.

76    It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.

25    The Minister’s submissions in relation to this ground must be accepted. This ground of review, as made before the primary judge and maintained on appeal, was misconceived and, accordingly, must fail. There was no failure by the Authority to exercise or consider exercising any discretion to invite the appellant to comment on the refusal to consider the new information advanced, whether in writing or at an interview. No such comment was required to be sought. While the first aspect of the Authority not giving an invitation to give information in writing, as opposed to the second aspect of doing so at an interview, was not addressed by the primary judge, there was no material difference between those two aspects in this case. Accordingly, his Honour did not err in rejecting this ground of review.

Conclusion

26    The appeal must be dismissed with costs.

Associate:

Dated:    7 September 2018