FEDERAL COURT OF AUSTRALIA

DRX17 v Minister for Immigration and Border Protection [2019] FCA 324

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Authority): DRX17 v Minister for Immigration [2018] FCCA 2060 (DRX17). The Authority had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), to refuse to grant the appellant a Safe Haven Enterprise (class XE) visa (SHEV).

background

2    The appellant is a citizen of Sri Lanka. He entered Australia on 23 October 2012 as an unauthorised maritime arrival.

3    On 30 August 2016 the appellant applied for a SHEV. A statement signed by the appellant setting out a summary of his claims for protection was annexed to his application (Statement of Claims).

4    On 16 February 2017 a delegate of the Minister refused the appellant’s application for a SHEV.

5    The Minister’s decision refusing the application for a SHEV was referred to the Authority for review and on 31 July 2017 the Authority affirmed that decision.

The appellant’s claims

6    The parties relied on the Authority’s summary of the appellant’s claims at [9] of its decision record, which I set out below:

•    He is a Tamil and was born in Batticaloa in the Eastern province of Sri Lanka.

•    His family have always been political. His father was an active member of the Tamil National Alliance (TNA) from 1971. His paternal cousins and uncle were active members of the Liberation Tigers of Tamil Eelam (LTTE).

•    His cousins B and D and his uncle were killed during the conflict. Another uncle and cousin have been missing since 2011.

•    His family were supporters of the LTTE and were targeted by the government and the paramilitary. They were forced to help the LTTE because they were Tamil.

•    He and his family were always watched because of their support for the TNA and the LTTE and there were many incidents of harm towards his family and him over the years.

•    His father was a businessman. When he was around 7 or 8 paramilitary groups came to his house and demanded money from his father and that his older brother, T, join their group. Eventually T left Sri Lanka and now lives in Lebanon. His other brothers escaped to Qatar.

•    When he was young, a paramilitary group arrested his brother P in 1997, put him in jail and tortured him. P has been detained and tortured a few times.

•    After this happened, his father started to hide his siblings and arranged a marriage for his brother V, however V was arrested by a paramilitary group and put into jail. In jail the Human Rights Commission, Red Cross and Tamil Party visited him.

•    In 2005 the [appellant] went to Dubai as he was fearful for his life.

•    In around 2008 a paramilitary group demanded 15 Laks from his father. His father was assaulted. He and his mother were also assaulted. He ran way and was shot at though not hit. He went to the home of his mother’s friend.

•    The paramilitary group took his father. His father was released however had suffered injuries that required hospitalisation.

•    The paramilitary group demanded 1,000,000 rupees from his mother or she would have to surrender him to them. His mother paid the paramilitary.

•    After the release of his father, they received threatening phone calls. They would come and knock on the door and ask if he was inside.

•    He continued to be harassed even after he was married. The Karuna Group and the Sri Lankan Army (SLA) started coming to his wife’s home and looking for him.

•    In 2011 his father was kidnapped by the paramilitary and demanded that he go see them. His mother paid 5 Laks and they released him. His father was severely tortured and died from his wounds. The [appellant] went into hiding and did not attend his father’s funeral.

•    During the elections in 2012 the TNA asked him to help them. The Sri Lankan authorities found out that he had provided his van to the TNA. In July 2012 the Sri Lankan authorities came to his home. He was not home. They shot the wind screen of his van and slashed its tyres.

•    The Sri Lankan military came to the house and assaulted him and his wife. The tried to shoot him. The blindfolded and put him into the van. He was taken to a place with other people where he was tortured and not given enough food. They were told that they would be killed after the provincial council election in September 2012. He later escaped. While he was escaping the paramilitary shot him. He ran to a house and called his wife took him to a Tamil doctor.

•    The incidents of torture and trauma have affected his physical and mental health.

•    He fears for the safety of his wife and daughter from the Karuna group and the paramilitary.

•    After the new government was elected, some people came to his home and asked his wife about his whereabouts. They threatened his wife and demanded that she pay them money. They came to his home three times and on the third time his wife gave them the money. They told her that he needed to keep giving them money and that if he returned they would shoot him because he escaped from the camp.

•    He will face harm in Sri Lanka if he returns because of his imputed political opinion, race because he is a failed asylum seeker who left Sri Lanka unlawfully.

the authority’s decision

7    The Authority noted that it had received a written submission on 17 March 2017 from the appellant which included:

    a letter from MP Seenithamby Yoheswaran dated 13 March 2017 (MP Letter);

    an article from the Daily News titled “Karuna forms ‘Tamil United Freedom Party’ in Batticaloa” dated 12 February 2017 (Karuna Article); and

    an article from the Sri Lanka News titled “Police Hunt for gunman in Batticaloa LRC Director Shooting” dated 24 February 2017 (Shooting Article).

8    The Authority found that each of the MP Letter, the Karuna Article and the Shooting Article were new information for the purposes of s 473DD of the Migration Act 1958 (Cth) (Act). It was satisfied that “exceptional circumstances” existed to justify consideration of the Karuna Article because it postdated the delegate’s decision and was directly relevant to the appellant’s claims to fear harm from the Karuna group. However, it was not satisfied that there were exceptional circumstances to justify considering either the MP Letter or the Shooting Article. In relation to the MP Letter, at [5] of its decision record the Authority said:

The submissions include a letter from MP Seenithamby Yoheswaran dated 13 March 2017. This letter was not before the delegate and is “new information” for the purposes of s.473DD. The [appellant’s] representative states that had this letter been known to the delegate it may have affected the consideration of the [appellant’s] claims and that there are exceptional circumstances when a person’s life is at risk. The letter states that Mr Yoheswaran has provided the letter because the [appellant] still has life threatening issues by the Karuna group and deputy army group. Although the letter itself was written after the delegate’s decision and Mr Yoheswaran stated that he got the information due to being a member of parliament in the exercise of his moral duties, it appears to have been requested by the [appellant] as he had instructed his representatives to provide the IAA with the letter. It is not apparent why such a letter of support could not have obtained the letter before the delegate’s decision was made I also note that while the letter says that the [appellant] “still has life threatening issues by the Karuna group and deputy army group” it does not indicate that anything referred to relates to events in the 3-4 weeks between the delegate’s decision and the letter itself. I am not satisfied that there are exceptional circumstances to justify considering the new information.

9    After reaching its conclusions on the Karuna Article and Shooting Article, the Authority turned to consider the appellant’s claims for protection. It accepted that:

(1)    the appellant and his family supported the Tamil National Alliance (TNA) for some years, his father was an active TNA member, the appellant had family who were active members of the Liberation Tigers of Tamil Eelam (LTTE), some of whom were killed or tortured and some of whom are still missing, and the appellant and his family were forced to the help the LTTE because they were Tamil;

(2)    the appellant and his family attracted attention and suffered discrimination as a result of their Tamil ethnicity during the years of the conflict;

(3)    it was plausible that the appellant travelled to Dubai in 2005 because his father thought it was good for him to get away due to the harassment he suffered as a Tamil;

(4)    the appellant came from a well-to-do Tamil family and his father operated a successful business;

(5)    paramilitary groups extorted the appellant’s father for money when the appellant was young, threatened his family, and on two occasions kidnapped the appellant’s father, who died in July 2011 from injuries he sustained on the second such occasion;

(6)    some of the appellant’s brothers left Sri Lanka and now live overseas;

(7)    given that the appellant and his family supported the TNA and his father was an active member, the appellant was asked by the TNA to help them in 2012 during the elections and that his van was used for the election;

(8)    Sri Lankan authorities found out that the appellant had provided his van to the TNA and attended his home when was not there and vandalised the van;

(9)    the appellant’s wife was extorted for money after the new government was elected;

(10)    in July 2012 the appellant was detained and taken to an unknown location where he watched another detainee be shot and buried after which he was taken to another place with 11 other people and tortured, given insufficient food and told he would be killed after the provincial council election in September 2012. The appellant escaped after about 45 days and, while escaping, was shot at by the paramilitary and hit under the armpit; and

(11)    following his escape, men came to the appellant’s home demanding money from his wife and asking about the appellant’s whereabouts.

10    However, the Authority found that the appellant would not suffer serious harm or significant harm on the basis of his ethnicity or any political opinion, namely on the basis of his support for the TNA or because he is a Tamil from a former LTTE controlled area. In summary, this was because of the appellant’s limited involvement with the TNA, the passage of time and country information which suggested that Sri Lanka’s political situation had significantly improved since the end of the civil war and the election of the Sirisena government in 2015. Similarly, the Authority was not satisfied that the appellant’s family was the subject of extortion attempts because of his father’s membership of, or his family’s support for, the TNA or imputed links to the LTTE.

11    In relation to the appellant’s claim that he feared that he would suffer harm as a returning asylum seeker who departed Sri Lanka illegally, the Authority found that the appellant would be processed at the airport upon his return but that, given that he has no “identity concerns, or criminal or security records that would raise the concern of the authorities” and has no relevant profile as a person with links to the LTTE, or for any other reason, the authorities would establish that he was not of any interest. The Authority found that, because the appellant departed illegally, he may be arrested and charged under Sri Lanka’s Immigration and Emigration Act and brought before a court and either fined or granted bail. The Authority found that such treatment would not amount to serious harm and that the process to which the appellant would be subjected would not amount to persecution because it involved the application of a law which applies to all Sri Lankans and that is not selectively enforced or applied in a discriminatory manner.

12    The Authority concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and that he did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.

the federal circuit court proceeding

13    On 31 January 2018 the appellant filed an amended application for review of the Authority’s decision in the Federal Circuit Court. In that application he raised ten grounds (ground 7 had been deleted) but at hearing abandoned “ground 10”, leaving grounds 1 to 6, 8 to 9 and 11 for determination by that court. Those grounds are set out at [30] of DRX17. I do not propose to set them out in full.

14    By ground one the appellant alleged that the Authority failed to take into account a relevant consideration and/or failed to consider a claim, namely the risk to the appellant as a witness to murder in the context of his abduction. The primary judge did not accept that there was an integer of the appellant’s claims that was not the subject of findings by the Authority and found that there was no separate claim that arose on the material before the Authority that the appellant feared harm because of his having witnessed a shooting. His Honour found that the particular incident was raised in the context of the appellant’s broader claims about the Sri Lankan Army’s (SLA) interest in him because of his support for the TNA or LTTE in respect of which dispositive findings were made by the Authority.

15    By ground two the appellant alleged that the Authority failed to take into account a relevant consideration and/or failed to consider his claim “relating to white vans”. The particulars to the ground included that the appellant “claimed that he feared harm at the hands of paramilitaries/abduction by white vans” and that the Authority failed to engage with that claim. The primary judge found that the appellant’s claim to fear harm from the Karuna group and other paramilitary groups, including by way of abduction, was taken into account by the Authority and was the subject of dispositive findings.

16    By ground three the appellant alleged that the Authority erred in its construction of s 473DD and s 473DE of the Act and in refusing/failing to give consideration to certain information provided by the appellant, in particular the MP Letter. In relation to that ground the primary judge found that, contrary to the appellant’s submissions, the Authority took into account both limbs of s 473DD of the Act in considering whether there were exceptional circumstances to justify the consideration of any new information. The primary judge also found that the Authority correctly identified the MP Letter as new information, and that it was not a translation of another document in the court book as submitted by the appellant and no such submission was advanced to the Authority on behalf of the appellant.

17    By ground four the appellant alleged that the Authority fell into error when it failed to consider his claim that he would be harmed due to extortion. The primary judge found that the Authority had made dispositive findings regarding the appellant’s claims about the extortion and that the Authority had found that any extortion attempts were not connected to the SLA nor did they result from the appellant’s support for the TNA, his Tamil ethnicity or any perceived association with the LTTE. The primary judge found that the Authority’s findings were open on the evidence and that there was no conflation or misunderstanding by the Authority of the appellant’s claims or the evidence before it.

18    By ground five the appellant alleged that the Authority failed to give realistic consideration to his claim about future political activities and/or that its findings were illogical or irrational. The primary judge found that there was a genuine consideration by the Authority of the appellant’s claims in this regard and that it was open to the Authority to find that the appellant was a low-level supporter of the TNA. His Honour found that the Authority’s reasoning was not irrational or illogical and that its findings were open to it for the reasons it gave.

19    By ground six the appellant alleged that the Authority fell into jurisdictional error in finding, without any evidence, that should the appellant be arrested and detained on his return to Sri Lanka he would secure bail by a guarantor. The primary judge found that the inference drawn by the Authority was open to it on the evidence that was before it including the appellant’s own evidence that his family was wealthy.

20    By ground eight the appellant alleged that, given its acceptance of torture and other harm to him, the Authority’s findings in relation to the risk of future harm were illogical or otherwise irrational or that the Authority failed to give realistic consideration to the appellant’s claim. The primary judge referred to the Authority’s finding that, in light of the country information, the passage of time and the low level of the appellant’s previous involvement with the TNA, it was not satisfied that the appellant faced a real risk of serious harm amounting to persecution on the basis of his past support of the TNA if he returned to Sri Lanka. The primary judge found that the Authority gave “an evident and intelligible justification for the adverse findings” and that accordingly those findings could not be said to be unreasonable. The primary judge found that the Authority’s findings in [23] and [24] of its reasons were rational and logical and that there had been a real and meaningful engagement with the appellant’s claims.

21    By ground nine the appellant alleged that the Authority erred in considering s 473DD of the Act and that its decision to reject “new information” failed to consider all of the circumstances and/or misconstrued and misapplied s 473DD of the Act. The primary judge noted the appellant’s acceptance that this ground could not succeed if ground three was not made out, which was the case.

22    By ground eleven the appellant alleged that the Authority erred in failing to take into account all of his claims cumulatively. The primary judge found that the Authority made dispositive findings in respect of each of the appellant’s claims and that the absence of an express statement to the effect that it had considered those claims cumulatively did not, of itself, amount to error. His Honour held that, in the circumstances of the case, where each of the individual claims made by the appellant had been found not to give rise to a real risk of significant harm, no amount of cumulative consideration of those claims was capable of producing a different result. The primary judge accepted the Minister’s submission that, while the Authority did not expressly refer to a cumulative consideration of the appellant’s claims, it was open to him to infer, taking into account the Authority’s reasons as a whole, that the Authority had done so.

the appeal

23    Although the appellant’s notice of appeal in this Court raises eight grounds of appeal, he does not press grounds six and seven. I will address the remaining six grounds in turn below.

Ground one

24    In ground one, which takes issue with the primary judge’s findings in relation to ground one below, the appellant alleges that:

His Honour’s findings adopting the Authority’s conclusion that there was no risk and no real chance of harm to Appellant is affected by irrationality / extreme illogicality and is unreasonable and misapprehended what is ‘serious harm” and “significant harm” under the Act. The Authority has thereby committed jurisdictional error. His Honour in adopting the Authority’s findings has fallen into error (and has committed jurisdictional error) (particulars in respect of all the grounds to be provided upon receipt of judgment).

Particulars

(a)    The Authority accepted as plausible that Appellant claimed that he was abducted, blindfolded and taken in a van to unknown location.

(b)    The Appellant claimed that there was another person in the van (AB99; SOC at [26]).

(c)    The abductors removed the blindfold.

(d)    He saw another person in the van being shot and buried in the nearby cemetery.

(e)    The Appellant had gunshot whilst escaping.

(f)    The Appellant was told by the abductors that same would happen to him.

(g)    The Authority failed to engage with the claim.

(h)    The Authority has erred in failing to consider the risk to the Appellant as witness to the murder.

(i)    The Appellant was of interest to the Authorities at the time of his departure from Sri Lanka.

(j)    The Court has thereby erred (to be further particularised upon receipt of written judgment from FCCA).

(k)    The Court should have found that the Authority thereby committed jurisdictional error.

The appellant’s submissions

25    The appellant submitted that the primary judge erred in finding that the Authority had not fallen into error in considering the appellant’s claim that he feared harm because he witnessed a murder committed by the SLA. The appellant submitted that the Authority did not engage with his claim made at [26] of his Statement of Claims and failed to consider the risk to the appellant as a witness to a murder committed by state personnel. He contended that the Authority limited its consideration to the incident at the time of the election and did not engage with the seriousness of the event. He said that the state and army personnel would have an interest in him as a witness to murder and that the Authority “has not engaged with the real issues and dismissed as TNA related even [sic]”.

Consideration

26    By this ground the appellant asserts that the Authority failed to consider a claim. He relies on [26] of his Statement of Claims where he says he made the claim and which provides:

They blindfolded me and put me inside the van. I could feel with my hands that someone else was in the van. They took us somewhere. At the time I didn’t know where I was being taken. They then told me that I would see what would happen to me so they untied my blindfold. They then shot the other person in the van and buried him near the cemetery. I saw this happen with my own eyes.

27    The Authority has an obligation to consider not only claims that have been articulated by an applicant but also those which may not be articulated but which arise squarely on the material before it. In AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 a Full Court of this Court said:

18    It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

•    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

•    The Tribunal is only required to consider such claims where they are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)     clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).

•    These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

(Emphasis added.)

•    As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a)    such a finding is not to be made lightly (NABE at [68]);

(b)    the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c)    to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37    While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38    Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)    while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

(e)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

(original emphasis.)

28    The appellant’s claim at [26] of his Statement of Claims cannot be considered in isolation. Whether the alleged claim, which the appellant articulated as a claim to fear harm from those who committed the murder because of his having witnessed the murder, was clearly articulated or clearly emerged from the materials must be considered having regard to the way the appellant’s claims were presented over time.

29    Paragraph [26] of the Statement of Claims appeared under the heading “2012 incident”. In that part of his Statement of Claims the appellant described various incidents which amounted to a claim to fear harm because he assisted the TNA during the 2012 election and loaned his van to them, including the incident at [26]. That is, he claimed to fear harm because of his political opinion.

30    The delegate’s decision records that the appellant claimed to fear harm, among other things, as a supporter of the TNA and for being associated with a family that supports the TNA. His claim to have been abducted, blindfolded, and put in a van and to have witnessed a shooting is referred to as part of that claim. The delegate addressed that claim in “Part 5: Findings of fact”. In particular it accepted that the appellant was abducted, “in part because of his family’s wealth, particularly as the other persons [in the van] were also wealthy, and not supporting or paying money to Karuna group, as much as for any involvement with the TNA during elections …”. In “Part 6: Australia’s protection obligations”, among other things, the delegate said in relation of the appellant’s fear of being harmed because he was a supporter of the TNA and was associated with a family that supports the TNA:

The [appellant] has claimed he is perceived to be a member of the Tamil National Alliance (TNA) and part of a family that supports the TNA. He has claimed that he assisted the Tamil National Alliance during elections by providing them with his van and, in July 2012, the Sri Lankan authorities (the Sri Lankan military) slashed the tyres of his van and shot the windscreen at his mother’s home and later kidnapped him along with 19 other persons in a van and held for 45 days before escaping. I have accepted this claim, although as outlined under Findings of fact section, based on his testimony, I consider the [appellant] was abducted because of his family’s wealth and his not supporting or paying the Karuna Group, as much as any perception of him, as a supporter of the TNA, during elections.

…

Overall, I am satisfied that there is not a real chance that the [appellant] will be pursued and seriously harmed by any persons in Sri Lanka on account of his association with the TNA. I therefore find the [appellant] does not hold a well-founded fear of persecution for this reason.

31    In my opinion a separate claim to fear harm from the perpetrators of the murder due to the appellant having witnessed the murder does not arise. First, there is no substantial, clearly articulated claim that the appellant feared harm because he witnessed a murder. The incident recited at [26] does not amount to such a claim. Secondly, there was no such claim that squarely emerged from the material before the Authority. That a claim might be said to arise from the materials is not enough. The incident described at [26] of the Statement of Claims was part of the appellant’s claim to fear harm because of his political opinion, namely his association with the TNA. There was no “substantial, clearly articulated argument, relying on established facts” that the appellant feared harm from those who committed the murder due to his having witnessed the murder.

32    The claim that was made, that the appellant feared harm because he and his family were associated with the TNA, was comprehensively addressed by the Authority at [18]-[24] of its decision record including, as part of that, the claim to have been abducted, to have witnessed a murder and to have been tortured.

33    Ground one is not made out.

Ground two

34    Ground two, which takes issue with the primary judge’s findings in relation to ground three below, alleges that:

His Honour erred (and should have found that the Authority erred) in the construction of the Act (s 473DD) in refusing to give consideration to certain information provided by the Appellant (IAA at [5]). His Honour should have found that the and erred in failing to consider information provided / erred in considering letter dated 13 March 2016 from MP Seenithamby Yoheswaram (which was wrongly construed as “new information”) and asked wrong question and thereby committed jurisdictional error. The Authority erred in the considering s 473DD of the Act. The Authority’s decision to reject what it termed “new information” is affected by jurisdictional error as it failed to consider all the circumstances and / or misconstrued and misapplied s 473DD when it rejected the information.

Particulars

(a)    The Appellant provided letter dated 13 March 2016 from MP Seenithamby Yoheswaram.

(b)    The Authority failed to engage with the Appellant’s documents.

(c)    These document / information was further corroborative information.

(d)    There were life threatening corroborative information to consider.

(e)    There were ongoing problems regarding the Appellant and the letter engages with that point.

(f)    The Authority erred in consideration of its discretion and failed to exercise its discretion in accordance with the law.

(g)    There were exceptional circumstances.

(h)    The Authority failed to engage with the Appellant’s documents appropriately.

(i)    The Authority all the circumstances constituting exceptional circumstances.

(g)    The Authority did not make appropriate findings in rejecting the information.

(k)    The Authority fell into jurisdictional error.

Appellant’s submissions

35    The appellant submitted that the Authority wrongly characterised the MP Letter as new information for the purposes of s 473DD of the Act. He made two alternative submissions. First, the appellant contended that the MP Letter was not “new information” but was corroborative of information provided to the Minister in a letter dated 10 December 2012 from the same Member of Parliament (December 2012 Letter) which was before the delegate. Secondly, the appellant contended that the Authority erred in finding that there were not “exceptional circumstances” as required by s 473DD(a) of the Act for considering the MP Letter.

Consideration

36    In order to consider this ground it is necessary to have regard to aspects of the scheme of review prescribed by Pt 7AA of the Act and, in particular, Div 3 of Pt 7AA which concerns the conduct of the review and which, together with s 473GA and s 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: s 473DA(1).

37    Section 473DB requires the Authority, subject only to the matters set out in s 473DC and s 473DD, to review a fast track reviewable decision by considering the review material provided to the Authority under s 473CB of the Act without accepting or requesting new information and without interviewing the referred applicant.

38    Central to this ground are s 473DC and s 473DD of the Act which provide:

473DC Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

   (b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)    in writing; or

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

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

39    I turn then to consider the bases upon which the appellant contends the primary judge erred in his consideration of ground three.

40    Firstly, contrary to the appellant’s submissions, the Authority was right to conclude that the MP Letter was “new information”.

41    The appellant argued that the MP Letter was not new information because it contained the same subject matter as, and was a further elaboration of, the matters contained in the December 2012 Letter and, I infer, that its contents were thus before the Minister when he made his decision under s 65 of the Act. A consideration of the MP Letter and the December 2012 Letter does not lead to the conclusion asserted by the appellant. In the December 2012 Letter the author said that the appellant had engaged in activities with the TNA to assist them in the election process, and referred to telephone threats made to the appellant and to an attendance at the appellant’s house by an unknown group. In the MP Letter the same author said that the appellant would be safer in Australia than Sri Lanka because he would continue to be threatened by the Karuna group and the “deputy army group”; described a “new political assembly” started by the Karuna group; and referred to three people who were killed in 2017. It is apparent that the MP Letter differs from the December 2012 Letter in both its content and subject matter.

42    In any event, whether or not information provided to the Authority is “new information” is to be determined by reference to the definition in s 473DC(1) of the Act which requires both a consideration of whether the information was before the Minister when he made his decision and whether the information may be relevant. The MP Letter itself was clearly not before the Minister when he made his decision under s 65 of the Act. That is not a matter which I understand to be in dispute. But, in any event, so much is evident from the fact that it postdates the decision made by the Minister’s delegate. Insofar as the requirements of s 473DC(1)(a) of the Act concern the content or subject matter of the information, the analysis in the preceding paragraph demonstrates that similarly the content of the MP Letter was not before the Minister at the time he made his decision under s 65 of the Act.

43    As to the relevance requirement in subs (1)(b) it is apparent that the MP Letter, given its content, may be relevant. I would infer that the Authority considered that to be the case given its conclusion that the MP Letter was “new information” for the purposes of s 473DD of the Act.

44    Secondly, there was no error in the Authority’s finding that there were no exceptional circumstances to justify it considering the new information as required by s 473DD of the Act.

45    In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 252 ALR 600; [2018] HCA 16 (Plaintiff M174/2016) Gageler, Keane and Nettle JJ considered s 473DD of the Act and relevantly said the following:

29    The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.

30    Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

31    Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

(footnotes omitted)

46    It is clear that the requirements of s 473DD(a) and (b) are cumulative and that, when new information has been provided by a referred applicant the Authority must be satisfied that the requirements of both subsections have been met before the Authority can consider it. Thus if the Authority finds that “exceptional circumstances” do not exist within the meaning of s 473DD(a) it is not required to then go on to consider whether s 473DD(b) is satisfied.

47    The appellant’s advisor’s submission to the Authority enclosing the MP Letter stated that as the MP Letter was dated 13 March 2017 it could not have been provided to the delegate and continued:

Had this information been known by the delegate, it may have affected the consideration of the referred [appellant’s] claims. We state that this is an exceptional circumstance especially when a person’s life is at risk. We respectfully request the presiding reviewee to consider this new information as set out in section 473DD of the Migration Act …

48    The Authority considered the MP Letter and that submission at [5] of its decision record (see [8] above). After summarising the contents of the MP Letter the Authority noted that it was not apparent why the MP Letter could not have been obtained before the delegate made his decision and that nothing contained in it concerned events in the three to four weeks between the delegate’s decision and the date of the letter. In my opinion, having regard to its content, the MP Letter did not advance the appellant’s claims in a meaningful way. There was nothing “exceptional” about it in the sense of taking the claims and material relied on any further. The content of the MP Letter thus provided a proper basis for the Authority’s finding that there were not “exceptional circumstances” to justify considering it. Having found that there were not exceptional circumstances, the Authority did not have to go on to consider s 473DD(b) of the Act.

49    There was no error in the primary judge’s findings in relation to the MP Letter and the Authority’s treatment of it.

Ground three

50    Ground three, which takes issue with the primary judge’s findings in relation to ground six below, alleges that:

The primary judge fell into error in adopting the Authority findings and reasons. The Authority’s decision is affected by jurisdictional error when it found that the whilst the Appellant would be arrested and detained upon return to Sri Lanka without evidence found that the Appellant would secure bail by guarantor [IAA at [31]); The primary judge should have found that the Appellant had escaped from detention and were differing circumstances that ought to have been taken into account. The primary judge should have found that the Authority has fallen into jurisdictional error when it failed to address / consider the proper basis upon which bail would be granted based on the evidence before it.

Particulars

3.1    The primary judge should have addressed whether the Appellant’s different circumstances would entitle the Appellant to bail.

3.2    The Authority did not properly consider the Appellant’s his ability to secure bail.

3.3    The Authority has presumed that the Appellant would be released on bail without making the appropriate findings based on information before it.

3.4    The Appellant was previous escape and the general information was not relevant to the Appellant.

3.5    The Authority has fallen into error.

Appellant’s submissions

51    The appellant submitted that the primary judge should have found that the Authority erred when it considered the appellant’s claim to fear harm upon his return to Sri Lanka as a returning asylum seeker who had escaped detention and departed illegally. The appellant’s complaint is with the Authority’s finding that, whilst he would be arrested and detained upon return to Sri Lanka, he would secure bail by having a family member act as a guarantor. The appellant contended that in making that finding the Authority had not engaged with his special circumstances. He submitted that he was not an ordinary asylum seeker in that he was a member of a family that supported the LTTE and thus would receive greater scrutiny; he had escaped from detention; and there had been interest in him after his departure from Sri Lanka.

Consideration

52    This ground focuses on the Authority’s findings at [31] of its decision record where it said:

Based on DFAT’s advice I find that if the [appellant] were to plead not guilty, he would either be immediately granted bail on personal surety, or he might have to wait to be collected by a family member if required to have a family member act as guarantor. ….

It is not the case that the Authority made that finding without any evidence or without regard to the appellant’s particular circumstances. The appellant overlooks the fact that the Authority had already made findings and rejected any claim that the appellant would suffer harm as a result of those matters that the appellant says are “his special circumstances”.

53    The Authority was not satisfied that the appellant’s family was subjected to extortion attempts because of their support for the TNA or imputed links to the LTTE; did not consider that the appellant’s work with the TNA in the 2012 provincial elections would result in a real chance of serious harm if he returned to Sri Lanka; and did not accept that men came to the appellant’s home looking for him because of any connection with the SLA or his detention, his support for the TNA, his Tamil ethnicity or any perceived association with the LTTE, but because he was the subject of extortion by paramilitary groups or individuals.

54    As the Authority noted at [29] of its decision record, it was satisfied that the appellant had no identity concerns or criminal or security records that would raise the concern of the Sri Lankan authorities and found that the appellant had no relevant profile as a person with actual or suspected links to the LTTE or for any other reason. The Authority was accordingly satisfied that the appellant would not be a risk of harm during or as a consequence of the routine investigation undertaken by the Sri Lankan authorities upon his return.

55    That being so, as the Minister submitted, it was open to the Authority to find that the Immigration and Emigration Act would not be applied in a discriminatory manner, the appellant would be treated as described at [31] of its decision record insofar as the grant of bail was concerned and his treatment upon his return to Sri Lanka under that Act would not give rise to a real chance of harm.

56    It follows that there was no error in the findings of the primary judge in relation to ground six.

Ground four

57    Ground four, which takes issue with the primary judge’s findings in relation to ground eight below, alleges that:

The learned primary judge erred in adopting the Authority’s the findings and adopting the reasons. The primary judge should have found the Authority failed to give meaningful consideration of risk to the Appellant (despite acceptance of torture and other harm (CBl 79; IAA at [23] - [24]) and should have found that Authority had not to given realistic consideration to the claim regarding / and or reached the conclusion evidence these types of harm and / or is illogical or irrational and unreasonable. The primary judge erred in failing to find that Authority has thereby committed jurisdictional error.

Particulars

(a)    The Authority has accepted incidence of detention / torture (AB179; IAA at [23]-[24]) classified the Appellant’s future involvement as “low level”.

(b)    The harm committed on the Appellant was much after the ending of the war and closer to his departure; the Authority reached illogical / irrational findings.

(c)    There were ongoing problems regarding the Appellant.

(d)    The [appellant] suffered gunshot whilst escaping.

(e)    The Authority has given realistic consideration and has not made appropriate findings in respect of the claims.

(f)    The Authority thereby committed jurisdictional error.

Appellant’s submissions

58    The appellant submitted that the Authority’s finding that he was, at most, a low-level supporter of the TNA and that he would not be at risk of harm given the passing of time and the change in political climate since the 2012 election was illogical. The appellant further submitted that this finding failed to give consideration to the fact that his detention and torture by the SLA was proximate to his departure from Sri Lanka and that he only gained his freedom because he escaped after 45 days. The appellant contended that, having accepted that these incidents occurred, it was then illogical for the Authority to say that he was not of interest to the authorities because the election was over.

Consideration

59    In order to consider this ground it is necessary to have regard to the Authority’s reasoning at [18]-[24] of its decision record where it considered, amongst other claims, the appellant’s claim to fear harm because of his association with the TNA.

60    The Authority accepted that the appellant supported the TNA for some years and that the Sri Lankan authorities vandalised the appellant’s van when they found out that he had loaned it to the TNA to assist in the 2012 election. However the Authority concluded that, given the current political landscape, the minor level of the appellant’s past association with the TNA and the length of time that had elapsed since the events of 2012, the appellant’s work with the TNA in the 2012 provincial elections would not result in the appellant facing a real chance of serious harm if he returned to Sri Lanka. The Authority found, based on the appellant’s evidence, that he was at most a low-level supporter of the TNA and there was no independent evidence to suggest that low-level TNA supporters continued to be at real risk of serious harm many years after elections.

61    The Authority then considered the appellant’s claim to suffer harm due to extortion by paramilitary organisations. It accepted that the appellant’s wife was extorted for money after the new government was elected but noted that there was no evidence that there had been further extortion attempts on him or his family since that incident, two years prior. The Authority was satisfied that the appellant did not face a real chance of harm from any Sri Lankan authority, the Karuna group, any other paramilitary groups or the men who previously tried to extort him on the basis of being someone from a wealthy family now or in the reasonably foreseeable future.

62    The Authority then turned to consider, and accepted, the appellant’s claims that he was abducted by the Sri Lankan military, taken first to an unknown location where he witnessed a shooting and then to another place where he was tortured and told he would be killed after the provincial council election in September 2012. It also accepted that the appellant escaped after about 45 days in detention. However, the Authority did not accept that men came to the appellant’s home looking for him because of any connection with the SLA or his detention, his support for the TNA, his Tamil ethnicity or any perceived association with the LTTE, but because he was the subject of extortion by paramilitary groups or individuals.

63    There is nothing in the Authority’s reasoning that is illogical or irrational. It was open to the Authority to engage in the process of reasoning which it did in considering each of the aspects of the appellant’s claim to fear harm because of his support of the TNA. The reasoning adopted by the Authority and the conclusions it reached could not said to be conclusions to “which no rational or logical decision maker could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] per Crennan and Bell JJ.

64    There was no error in the approach of the primary judge in coming to the same conclusion.

Ground five

65    Ground five, which takes issue with the primary judge’s findings in relation to ground five below, alleges that:

The learned primary judge should have found that the Authority failed to give realistic consideration to the claim regarding / and or reached the conclusion evidence (IAA at [19]) regarding future political activities and / or is illogical or irrational. The Authority has thereby committed jurisdictional error.

Particulars

(a)    The Authority has classified the Appellant’s future involvement as low level.

(b)    The Appellant’s family have always involved in political activities (together with his status the Authority reached illogical / irrational findings

(c)    There were ongoing problems regarding the Appellant and the letter engages with that point.

(d)    The Authority has given realistic consideration and has not made appropriate findings in respect of the claims.

(e)    The Authority thereby committed jurisdictional error.

Appellant’s submissions

66    The appellant submitted that the Authority fell into error in considering the damage to his van and political violence, his kidnapping, detention and torture. He contended that in relying on the changing political landscape in Sri Lanka, as it did at [19] of its decision record, the Authority did not engage with his own circumstances. The appellant submitted that the Authority’s classification of the appellant’s involvement with the TNA as low-level did not take into account his circumstances and that the Authority failed to give realistic consideration to his claim or reached a conclusion about his future political activities that was illogical or irrational.

Consideration

67    While this ground is difficult to understand, it appears that the appellant takes issue with the Authority’s finding at [19] of its decision record that he was a “low level” supporter of the TNA who would not face a real risk of serious or significant harm if he supported the TNA in the future.

68    As I have already observed at [9] above the Authority accepted that the appellant and his family supported the TNA. It also accepted that he was asked by the TNA to help them during the 2012 election; that he provided his van to the TNA for that purpose; and that, upon finding out that the appellant had done so, the Sri Lankan authorities attended his home and vandalised the van. However, in light of the country information, the appellant’s own evidence of his limited involvement with the TNA and the length of time that had elapsed since the 2012 election, the Authority was of the view that the appellant’s work with the TNA in the 2012 provincial election would not result in a real chance of serious harm if he returned to Sri Lanka. The Authority also found, based on the appellant’s own evidence, that the appellant was only a “low level supporter of the TNA at most” and observed that there was no evidence before it to suggest that he was a formal member or that he was involved in anything other than low-level activities. The Authority noted that there was no independent evidence to suggest that low-level supporters of the TNA continue to be at risk of serious harm years after the elections.

69    The Authority’s finding that the appellant was a low-level supporter of the TNA who would not be at risk of future harm was not illogical. It is not a finding that no rational or logical decision-maker could arrive at based on the same evidence. The Authority considered the appellant’s own evidence and the country information before making that finding and in reaching its subsequent conclusion that any future assistance provided by the appellant to the TNA, if he chose to he do so, would not give rise to the level of serious harm that would amount to persecution. There was no error in the primary judge’s rejection of ground five below.

Ground eight

70    In ground eight, which takes issue with the primary judge’s findings in relation to ground four below, the appellant alleges that:

The primary judge should have found that the Authority fell into error when it failed to consider the [appellant]’s claim that he would be harmed owing to extortion (at 24]). The Authority failed to ask correct question and/ or asked incorrect questions regarding Appellant’s risk upon return and thereby committed jurisdictional error. His Honour has thereby fell into error.

Particulars

(a)    The Appellant claimed that demands for money were made to his wife [IAA at [24]).

(b)    The Authority accepted that the Appellant’s wife paid monies.

(c)    The Authority has failed to ask the correct question as to impact on the Appellant were the activities.

(d)    The Authority has asked incorrect question and has failed to ask the correct question.

(e)    There were previous instances of torture accepted by the delegate (delegate at p7)

(f)    The Authority found that the persons extorting did not have connections to SLA.

(g)    The authority fell into error conflating the lack of SLA connection as a factor that the harm was not significant.

(h)    The Authority failed to address whether the claims gave rise to complementary protection.

(i)    The Authority has not assessed / did not address and has not considered this claim / integer of claim.

(j)    The Authority thereby committed jurisdictional error.

(original emphasis.)

Appellant’s submissions

71    The appellant submitted that the primary judge erred in finding that the Authority properly assessed his claim to fear harm as a result of extortion attempts on him. The appellant further submitted that the Authority fell into error when it failed to consider his claim that he would be harmed as a result of extortion attempts and failed to ask itself the correct question about the appellant’s risk upon his return.

Consideration

72    This ground should be rejected for the following reasons.

73    First, the Authority considered the appellant’s claim that his family was the subject of extortion attempts and that his father was kidnapped on two occasions and ultimately died of injuries he sustained as a result of his second kidnapping. However, the Authority was not satisfied that the extortion attempts on the appellant’s family were the result of the appellant’s father’s membership of the TNA, the appellant’s family’s support for the TNA or imputed links to the LTTE but because his father was a successful business owner and thus a suitable target for extortion.

74    Secondly, the Authority considered the appellant’s claim to fear harm due to extortion by paramilitary organisations. It accepted that his wife had been the subject of extortion attempts after the new government was elected but noted there was no evidence that since that incident, which had occurred two years prior, there had been further extortion attempts on him or his family. The Authority did not consider that the appellant faced a real risk of harm from extortion from any claimed source because there were no longer any active paramilitary groups in Sri Lanka; previous incidents of extortion were not as a result of the appellant’s ethnicity or his actual imputed political profile but because he was from a wealthy family; and there was no evidence that suggested that further extortion attempts had been made in the two years since the last incident, despite the appellant staying in contact with his family.

75    The Authority properly considered the appellant’s claim to fear harm as a result of extortion attempts.

76    Further, contrary to the matters raised by the appellant in the particulars to this ground:

(1)    the Authority did not conflate the “lack of SLA connection as a factor that the harm was not significant”. The Authority did not accept that the extortion attempts were connected to the SLA. This, in turn, bore upon the Authority’s rejection of the appellant’s claim to be subject to any ongoing risk of harm from the SLA because of his TNA or LTTE associations; and

(2)    the Authority did address whether the claims gave rise to complementary protection. Having reached conclusions about each of the claims made by the appellant it was of the view that, for the same reasons as it had rejected each of those claims and found that the appellant did not have a well-founded fear of persecution, it also was not satisfied that there was a real risk that he would face significant harm. That included his claims to be a supporter of the TNA and from a wealthy family.

77    There was no error in the approach of the primary judge in rejecting this ground.

conclusion

78    It follows from the reasons set out above that the appeal should be dismissed. As the appellant has been unsuccessful he should pay the first respondent’s costs. I will make orders accordingly.

Associate:

Dated:    11 March 2019