FEDERAL COURT OF AUSTRALIA

BZN16 v Minister for Immigration and Border Protection [2018] FCA 54

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing an application for judicial review of a decision of the Immigration Assessment Authority (“IAA”): BZN16 v Minister for Immigration & Anor [2017] FCCA 1067 (“FCCA judgment”). In its decision, the IAA affirmed a decision of a delegate of the first respondent (“Minister”) that she was not satisfied that Australia had protection obligations to the appellant pursuant to ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (“Act”).

2    The appellant’s notice of appeal contains the following single ground of appeal:

The Federal circuit court judge committed a legal error in dismissing my case. The judge failed to consider all of the grounds that was raised and filled [sic] to consider arguments put forward by my representative.

3    The appellant was not legally represented on the appeal and did not file written submissions. He appeared at the hearing of the appeal with the assistance of a Tamil interpreter.

Background to appeal

4    The appellant is a Sri Lankan male citizen who departed Sri Lanka by boat in September 2012 and arrived in Australia as an unauthorised maritime arrival (“UMA”). Although the appellant made an application for a protection visa on 6 February 2013, he was considered to be an unlawful non-citizen and, consequently, the application was considered to be invalid.

5    Subsequently, pursuant to the provisions of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (“Caseload Act”), the appellant was invited to, and did, make an application for a Safe Haven Enterprise Visa dated 7 October 2015. The application was refused by the Minister’s delegate on 20 May 2016.

Appellant’s claims for protection and the IAA’s findings

6    The Minister’s written submissions recorded the following matters concerning the appellant’s claims for protection and the IAA’s findings, which the appellant did not appear to dispute:

5.    The appellant is of Tamil ethnicity from Batticaloa in Sri Lanka. In general terms, the appellant claimed to fear harm from the Sri Lankan authorities because of his political opinion, his ethnicity and his membership of a particular social group. His support for the Tamil National Alliance (“TNP”) put him at risk from the authorities and the Tamil Makkal Viduthalai Pulikal (“TMVP”).

6.    The appellant’s claims involved two broad sets of facts. First, he claimed that in March 2011 he was arrested and detained by the Sri Lankan Army (“SLA”). He was questioned about his links to the LTTE and then beaten. Later, in November 2011, an intelligence group called the appellant’s mother about the appellant’s LTTE links and made an extortion demand.

7.    Secondly, the appellant claimed that he helped the TNA during the election period or when the TNA held rallies. In March 2012, members of the TMVP threatened the appellant, asking him to do work for them. The appellant joined the TNA in July 2012 and distributed leaflets for the TNA candidate. Thereafter, he was subjected to increasing harassment from the TMVP, including a death threat in August 2012 and a visit to his house where someone broke the windscreen of his vehicle. The TMVP members threatened to kill the appellant’s father. The appellant was advised not to lodge a complaint about TMVP members because they had connections with the police and government. On 31 August 2012, he sought refuge in the home of a priest.

8.    The IAA’s reasons are set out at [6]-[80] of the Decision. The IAA essentially agreed with the delegate that the appellant’s claims were credible. However, the IAA was not satisfied, including based on country information, that there was a real chance the appellant would suffer serious or significant harm on the bases he claimed. The IAA’s reasons were, in outline:

(a)    it was not satisfied that the appellant would face serious harm from the TMVP outside of Batticaloa. Although the appellant would not necessarily be able to secure state protection from the authorities in his home area, the Sri Lankan authorities, intelligence and security forces would not have any interest in the appellant directly. There were no official laws or policies that discriminated on the basis of political opinion and no evidence of systematic political discrimination. The IAA was satisfied that outside Batticaloa the appellant could support the TNA, which had a national presence, without interference. The IAA concluded that there was nothing in the appellant’s profile or past that would cause him to be targeted by the authorities. (at [31]-[38] and specifically at [36]);

(b)    it did not accept, based on country information, that the appellant faced a real chance of being harmed for reasons of his Tamil ethnicity. The appellant did not have any additional profile as a Tamil that would put him at risk from the authorities or the Sinhalese population (at [39]-[45]);

(c)    based on country information the Sri Lankan authorities would have no interest in the appellant on the basis of any LTTE connection (at [46]-[48]);

(d)    it was not satisfied that, based on country information, failed asylum seekers are targeted for harm or are imputed to hold political or other opinion or are generally at risk (at [49]-[53]);

(e)    it was not satisfied that any processes or penalties to which the appellant may be subjected as a result of leaving Sri Lanka illegally would constitute a real chance of serious harm (at [51]-[61]).

9.    In relation to complementary protection, the IAA concluded that if the appellant returned home to Batticaloa there was a real chance the appellant would be arbitrarily deprived of his life. However, it found that it would be reasonable for the appellant to relocate to an area outside of Batticaloa. The risk of harm from the TMVP was confined to the appellant’s home area and the authorities would have no interest in him if he returned to Sri Lanka. The appellant was asked at the delegate’s interview about whether he would be able to relocate outside of Batticaloa (at [74]) and the IAA considered his responses. The IAA noted that although the appellant had experienced a degree of trauma and may feel depressed at his current situation, the appellant continued to have family support in Sri Lanka, was educated with considerable work experience and trade skills, was well-regarded and there “was no obvious reason” why the appellant could not relocate to another area where the risk of harm from the TMVP was not present (at [72]-[78]).

(footnotes omitted)

FCCA judgment

7    The Minister made the following written submissions concerning the findings of the decision of the FCCA judge:

10.    Judge Street dismissed the appellant’s application for judicial review. Relevantly, his Honour found as follows:

(a)    the IAA made express reference to the appellant’s assertions that the TMVP were still interested in him and were still looking for him. Reading the Decision as a whole, the IAA made findings that the appellant would be targeted by the TMVP if he returned to Batticaloa but was not satisfied that the TMVP would have any interest in the appellant outside his home area (the risk being confined to that area). Those findings were open to the IAA and subsumed the appellant’s claims in respect of the on-going interest expressed by the TMVP to the appellant’s family;

(b)    section 5J(1)(c) of the Act requires that there is a real chance of persecution in all areas of the receiving country. An element of reasonableness is incorporated under s.5J. The IAA correctly identified the law and made findings that were open to it;

(c)    in relation to the appellant’s contention that the IAA failed to consider whether it was practical to relocate, s.36(2B)(a) of the Act refers to the question of whether it is reasonable to relocate. The IAA did not make express reference to the term “practical” but there is no “magic in that term”. It was necessary for the IAA to identify the reasons why, in the particular circumstances, it would be reasonable for the appellant to relocate which it did. By referring to the appellant’s personal circumstances, work experience, personal trauma and depression, the IAA was clearly taking practicality into account; and

(d)    although there may be circumstances in which the exercise of the power in s.473DC could be subject to challenge for unreasonableness, the circumstances of the present case did not support any such finding in relation to the IAA not raising with the appellant whether he would be able to secure bail.

(footnotes omitted)

8    I accept that this is an accurate summary of findings made by the FCCA judge.

Appellant’s oral submissions

9    The appellant contended that his claims were rejected because the decision-makers were told incorrectly that there are no problems in Sri Lanka now, when the true position is that there are still problems happening there. The appellant referred to abductions and shooting still happening in his village and said that there are people looking for him, with whom he had had problems in the past. The appellant said that he could not go back to his country and there was no protection of his life. The appellant said that it is not correct that he could relocate safely in Sri Lanka.

Scope of appeal

10    The Minister’s submissions assumed that the appellant’s appeal was brought by reference to each of the four grounds in his amended application to the FCCA dated 23 May 2017 (“amended application”).

11    However, the Minister noted:

(1)    as to the fourth ground, it was abandoned by counsel appearing for the appellant in the FCCA: FCCA judgment at [31].

(2)    as to the second ground, counsel appearing for the appellant in the FCCA had made a formal submission only, noting that the FCCA was bound by the decision of the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 68. An appeal to the High Court of Australia from the Full Court’s decision has since been dismissed: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.

12    Accordingly, the Minister submitted, there was no appellable error in the FCCA judge’s failure to accept either of these grounds of the amended application.

Consideration

13    The matters raised by the appellant orally do not demonstrate error on the part of the FCCA judge. Rather, they challenge the factual basis of the decision of the IAA (and the Minister’s delegate) and the correctness of the findings that the appellant would be able to live in Sri Lanka, outside of Batticaloa, without a real chance of suffering serious or significant harm on the bases he claimed.

14    I will adopt, in the appellant’s favour, the Minister’s assumption that the appellant’s appeal included the grounds in his amended application to the FCCA. As a result of the matters set out at [11] above, there is no appellable error in relation to the FCCA judge’s reasons concerning these two grounds. The other two grounds are considered below.

Relocation

15    The first ground of review in the amended application is:

1.    The [IAA] found that there was real chance that [the appellant] would be seriously harmed for his political support for TNA … The [IAA] finds it is reasonable for the Applicant to relocate to Colombo … The [IAA] committed jurisdictional error made findings by having regard to the entirety of issues and/ or failing to address all relevant matters in relation to the applicant’s circumstances. The [IAA] erred when it failed to address whether the risk was local and whether the Applicant would be able to avoid such risks.

Particulars

1.1    The evidence relied upon by the [IAA’s] finding in support the relocation findings does not address at the relevant matters (such as family network) but relies on the [IAA’s] finding on country information that TMVP and associates only operative only in the north rather than addressing the relevant issues supporting the conclusion.

1.2    The [IAA] failed to deal with reasonableness and practicality of relocating in accordance with the Act.

1.3    The [IAA] has failed to address the Applicant’s claims of fear throughout Sri Lanka.

1.4    The [IAA] has committed jurisdictional error.

Minister’s submissions

16    The Minister made the following relevant written submissions:

13.    The Caseload Act amended the Act so as to remove references to the UN Convention relating to the Status of Refugees 1951 (“Refugee Convention” or “Convention”). In its place, it provided for a codified regime based on the Refugee Convention that, among other things, provided for a statutory definition of what constituted a well-founded fear of persecution. In that regard, the changes included the introduction of s.5J(1)(c), which states that a person has a well-founded fear of persecution if, among other things, “the real chance of persecution relates to all areas of a receiving country”.

14.    Prior to the introduction of s.5J(1)(c), it was well-established that under the Refugee Convention a person did not have a well-founded fear of persecution if it was reasonable for that person to relocate to a safe area outside the area where that person may suffer harm: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51.

15.    It is submitted that, properly construed, s.5J(1)(c) – unlike the prior position before its introduction – does not require the concept of relocation to be referrable to considerations of reasonableness. That construction is evident both from the natural meaning of the plain words of the section and the terms of the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (which stated that “it is the Government’s intention that the principle will no longer encompass the consideration of whether the relocation is “reasonable” in light of the individual circumstances of the person” (at [1183]). This construction has been accepted in the Federal Circuit Court: DFE16 v Minister for Immigration and Border Protection [2017] FCCA 308 at [26]; EDA16 v Minister for Immigration and Border Protection [2017] FCCA 768 at [42]. The issue has also been the subject of some consideration by this Court: per Logan J in CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967 at [11]-[28] (“CDZ16”); per Robertson J in BBO16 v Minister for Immigration and Border Protection [2017] FCA 212 at [70]-[75] (“BBO16”).

16.    Consistently with this construction of s.5J(1)(c), which the first respondent submits is the correct one, the IAA’s approach was correct, focused as it was on the statutory test of the harm to which the appellant may be exposed in the entirety of the receiving country: [31]-[38] of the Decision. To that extent, his Honour’s conclusion at [35] of the Judgment was correct. It should be noted that there was, in fact, no necessity – for the reasons explained above – to advert to concepts of reasonableness in this context. To that extent, the first respondent does not accept his Honour’s view that it is correct to characterise s.5J as incorporating an element of reasonableness. However, it is not necessary for the Court to resolve this issue. This is because, on a plain and fair reading of the Decision, the IAA did, in any event, consider whether it was reasonable for the appellant to relocate.

17.    The IAA was required to consider the reasonableness of relocation when it came to consider questions of complementary protection pursuant s.36(2B)(a) of the Act. That provision makes it an express requirement that the decision-maker be satisfied that “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”. There is thus no need to distil any “relocation principle” or any related notion of reasonableness: per Robertson J in BBO16 at [70]-[77].

18.    It is evident from paragraphs [31]-[38] and [71]-[78] of the Decision that the IAA was aware of the need to consider whether it was reasonable for the appellant to reside in an area other than Batticaloa. The IAA assessed a number of different factors including the appellant’s family support, education and training and risk from the TMVP. It is respectfully submitted that his Honour was correct to find that notions of practicality do not require specific exposition so long as the tribunal identifies the reasonableness of the relocation, as it clearly did in this case: [36] of the Judgment. The IAA concluded its assessment of the reasonableness of relocation in its Decision by “[h]aving regard to all of the circumstances” (at [78]). Those words should be treated as encompassing all of the matters that the IAA referred to earlier in its reasons, as well as those factors that bore upon the IAA’s assessment of relocation in the Convention context.

19.    Further, the question of reasonableness is one that requires a factual inquiry to be undertaken and an evaluative judgment to be made: SZBGC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1168 at [25] per Emmett J. While the practical realities facing an applicant will be relevant (and in any event were considered by the IAA in this case), s.36(2B)(a) does not specify any mandatory relevant considerations.

(footnotes omitted)

Consideration

17    The question on appeal is whether the FCCA judge erred in rejecting ground 1.

18    Section 5J(1) of the Act provides:

(1)    For the     purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

19    Section 36 provides relevantly:

(2)    A criterion for a protection visa is that the applicant for the visa is:

…

(aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm;

20    The FCCA judge did not address particular 1.1 of ground 1 explicitly, but that particular does not disclose error on the part of the IAA. Contrary to particular 1.1, the IAA did consider the question of the appellant family network. At para 77 of the IAA’s decision record, it found that the appellant continued to have family support in Sri Lanka and at para 76 it noted the Department of Foreign Affairs and Trading’s advice that a lack of family connections can limit internal relocation options. Further, the IAA did not rely solely on country information in making its finding that it would be reasonable for the appellant to relocate within Sri Lanka. At paras 77 and 78 of the IAA’s decision record, it referred to the appellant’s work experience, trade skills, reputation and the absence of any obvious reasons why he could not relocate to an area where the risk of harm to him from the TMVP would not be present.

21    As to particular 1.2, the FCCA judge did not err in his conclusion that the IAA had not failed to apply the relevant law correctly for the reasons set out at paras 18 and 19 of the Minister’s written submissions.

22    The FCCA judge’s observation that an element of reasonableness is incorporated under s 5J of the Act is cryptic, but does not need to be analysed on this appeal. Accordingly, I have not addressed the Minister’s argument that s 5J(1)(c) does not incorporate any element of reasonableness.

23    As to particular 1.3, at [34] of his Honour’s reasons, the FCCA judge noted that while the IAA found that there is a real risk that the appellant would be targeted for serious harm by the TMVP if he were to return to Batticaloa, the IAA was not satisfied that the TMVP would have any interest in the appellant outside his home area and instead found that the risk of harm for the appellant was confined to his home area in Batticaloa. These findings are recorded at para 75 of the IAA decision record. The findings identified by the FCCA judge contradict the appellant’s contentions, incorporated into ground 1, that the IAA failed to address:

(a)    whether the risk of harm to the appellant in Sri Lanka was local;

(b)    whether the appellant would be able to avoid the risk of harm to which he would be subject in Batticaloa; and

(c)    the appellant’s claims of fear throughout Sri Lanka.

24    Further, the IAA’s finding is made in the context of the IAA’s reasons why it would be reasonable for the appellant to relocate to an area outside of Batticaloa. At para 74, the IAA recorded the appellant’s statement to the effect that circumstances “would make it impossible for him to relocate and live in any part of Sri Lanka”. The relevant circumstances concerned the risk of harm to the appellant in Sri Lanka generally. Thus, having regard to the IAA’s decision record, I am satisfied that there was no error on the part of the FCCA judge in rejecting particular 1.3.

25    Accordingly, I am satisfied that the FCCA judge was correct to reject ground 1.

Section 473DC of the Act

26    The third ground of review in the amended application is:

3.    The [IAA’s] decision is affected by jurisdictional error when it found that the whilst the Applicant would be arrested and detained upon return to Sri Lanka without putting these matters to the Applicant; the [IAA] has denied the Applicant procedural fairness in presuming that the Applicant would be granted [bail].

Particulars

3.1    The [IAA] did not put to the Applicant his ability to secure bail;

3.2    The [IAA] has presumed that the Applicant would be released on bail without making the appropriate findings.

27    Section 473DC of the Act provides, relevantly:

(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.

28    Section 473DD provides:

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.

29    The FCCA judge addressed the third ground of review in the following passage of his Honour’s judgment:

[38]    In relation to ground 3, Mr Kumar of counsel contended that the Authority should have exercised a power under s.473DC of the Act to invite the applicant to be heard in relation to whether or not he would be able to secure bail. It is apparent from the delegate’s decision that the issue of the applicant’s illegal departure and the application of Immigrants and Emigrants Act was an issue on which the applicant was on notice from the delegate’s decision. Indeed, the applicant’s submissions made reference to the consequences of the application of that Act. There was no request in those submissions for any exercise of power under s.473DC of the Act.

[39]    It was not necessary for the Authority in the circumstances of the present case to address in its reasons the discretionary consideration under s.473DC of the Act. I accept that there can be circumstances in which the exercise of that power could be the subject of challenge on the ground of being legally unreasonable. The circumstances of the present case do not support any unreasonableness by the Authority in not raising with the applicant whether or not he would be released on bail or able to secure bail. Accordingly, no jurisdictional error is made up by ground 3.

Minister’s submissions

30    The Minister made the following relevant written submissions:

21.    The ground that the appellant sought to press below was, in essence, predicated upon identifying the type of error that was the subject of the decision of Griffiths J in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (“SZTQS”). That approach was misplaced because the statutory context is entirely different.

22.    Sub-section 473DA(1) provides that Division 3 of Part 7AA, 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 [IAA]”. The IAA was under no obligation to provide documents that were before the delegate to the appellant: s.473DA(2).

23.    Sub-section 473DC(1) permits the IAA, subject to Part 7AA, to “get any documents or information” that “were not before the Minister when the Minister made the decision under section 65” and “the [IAA] considers may be relevant” (emphasis added). Sub-section (2) confirms the discretionary nature of the power in sub-section (1) by providing that the IAA “does not have a duty to get, request or accept any new information whether the [IAA] is requested to do so by a referred applicant or by any other person, or in any other circumstances”.

24.    However, such information can only be considered by the IAA if the IAA is satisfied that there are “exceptional circumstances” that justify consideration of the additional information: s.473DD(a). Further, if the information is from an applicant then the applicant must satisfy the IAA that it was not and could not have been supplied to the Minister before and that it was credible personal information which was not previously known and could have affected consideration of the claims: s.473DD(b)(i) and s.473DD(b)(ii).

25.    To the extent that ground three alleges that the IAA might have unreasonably failed to exercise its powers in s.473DC(3), this ground must fail. The appellant alleged below that the IAA should have exercised its powers in s.473DC(3) to invite him to be heard on the issue of whether he could secure bail. Such allegation must fail because it relies on the incorrect assumption that the IAA had a duty to consider whether to exercise its discretion in s 473DC(3). The IAA was not obliged to exercise the discretion implicit in s.473DC(3), or even to consider whether to exercise it, absent a statutory intention that it should: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 603 [22], 619 [76] and 623 [91], [92]; Yasmin v Attorney-General (Cth) (2015) 236 FCR 169 at [120]. Having regard to the IAA’s reasons, it is plain that the IAA did not consider whether to exercise its discretion in s.473DC, and as such, no unreasonableness can arise.

26.    Further, even if the IAA’s non-exercise of its discretionary power in s.473DC(3) constituted a decision that was subject to a requirement of reasonableness, it was not legally unreasonable in the circumstances of this case.

27.    The exercise of the power in s.473DC is discretionary (as his Honour found at [39] of the Judgment) and therefore evaluative: per Logan J in CDZ16 at [10]. However, the discretion must relevantly be read in the context of the restrictions imposed by the other provisions of Part 7AA.

28.    The present case is one in which any allegation of legal unreasonableness could only be made out based on an outcome-focused analysis. Since the Authority gave no reasons, whether its non-exercise of the power in s 473DC(3) was legally unreasonable falls to be determined by focusing on “the outcome of the [non-] exercise of power in the factual context presented” and “assess[ing] … its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise that power but to do so according to law”: per Allsop CJ, Robertson and Mortimer JJ in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 446 [45]. There is nothing in the facts of this matter, considered in the context of Part 7AA, including s.473DC(2), that would support a finding that the IAA’s non-exercise of the power was unreasonable.

29.    Finally, any suggestion that the IAA can deny procedural fairness if without notice it makes a finding different to that made by the delegate is contrary to the scheme of Part 7AA and must be rejected: per Barker J in DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [58]-[65].

30.    In these circumstances, it is respectfully submitted that this ground must also fail.

(footnotes omitted)

31    In oral submissions, counsel for the first respondent, Mr Kay Hoyle, drew attention to the delegate’s record of the appellant’s testimony “that as his family would have to come “all the way…from the East” for the purposes of providing bail in the event that he was detained, he would be subjected to prolonged detention”.

32    Mr Kay Hoyle also noted that written submissions made on behalf of the appellant to the IAA referred to passages from the delegate’s decision record concerning whether there is a real chance that the appellant will be persecuted if returned to Sri Lanka, including the paragraph in which the appellant’s testimony, set out above, is recorded. The written submissions include detailed submissions about why the appellant disagreed with this portion of the delegate’s reasons without disputing the accuracy of the summary of the appellant’s testimony or otherwise raising issues concerning the prospect of bail.

Consideration

33    In Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; (2015) 148 ALD 507 (“SZTQS”), Griffiths J found no error in the FCCA’s finding that the relevant tribunal had fallen into jurisdictional error by failing to identify as an issue, and invite SZTQS’s comments on, whether SZTQS had a family member who could and would provide surety for bail in the likely event that, on return to Sri Lanka, SZTQS would be arrested and the airport and brought before a court to seek bail. The Tribunal had found that SZTQS would secure bail with the assistance of a guarantor.

34    I accept that SZTQS was decided in a different statutory context and it is necessary to consider whether the IAA committed a jurisdictional error against the particular statutory framework of Part 7AA: cf. SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404 at [76] and [77].

35    The Minister’s submission that the power in s 473DC(3)(b) is purely discretionary and the IAA is not under a duty to consider the possible exercise of that power was recently considered in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210. Without addressing the existence of such a duty squarely, the Full Court said:

[69]    Next, it is appropriate to record that, although much argument was addressed to the nature of the Authority’s discretion in Subdiv C, including s 473DC, there is no doubt that the Authority had power to get any documents or information which were not before the Minister and which the Authority considered may be relevant. Put differently, that the Authority has a discretion rather than a duty to get those documents or information does not provide an answer to whether or not the Authority acted reasonably as explained in Li. We do not accept the submission on behalf of the Minister that the only relevant question is whether Pt 7AA required the Authority to give such notice to a referred applicant.

[70]    Neither do we accept the Minister’s submission that if there was no duty imposed on the Authority to consider the exercise of a discretionary power, the principles of legal unreasonableness could only have application in cases where the Authority had given consideration to exercising the power, and decided to exercise it in a manner adverse to an affected party. In our opinion, that proposition is too broad.

36    Thus, the Full Court rejected the Minister’s submission that no unreasonableness can arise where the IAA did not consider whether to exercise its discretion in s 473DC.

37    Accepting that a failure to exercise the power in s 473DC(3)(b) may give rise to jurisdictional error, I do not accept that the FCCA judge erred in failing to find such an error in this case. The appellant had identified as an issue the risk of prolonged detention while his family travelled from the east of Sri Lanka to post bail. While it is true that the IAA’s reasons do not specifically engage with that possibility (accepting only that the applicant may be remanded in custody for a short period while waiting to be brought before a magistrate), that omission is not relevant to the question whether the IAA should have raised questions about bail with the appellant or whether it denied the appellant procedural fairness in presuming that he would be granted bail. There was no legal unreasonableness in failing to take these steps where the appellant had explicitly put an argument that the relevant harm was prolonged detention while his family came to his aid, that argument carrying the implicit suggestion that the appellant’s inability to secure bail would be limited to the period of time necessary for his family to travel to him.

38    Accordingly, I accept that the FCCA judge did not err in his treatment of ground 3.

Conclusion

39    The appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    9 February 2018