FEDERAL COURT OF AUSTRALIA

DDQ17 v Minister for Immigration and Border Protection [2018] FCA 1223

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely upon appeal grounds 2-8 of the appellant’s notice of appeal filed 12 March 2018 be refused.

2.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. On 28 February 2018, the primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority. The Authority had affirmed a decision of a delegate of the first respondent, then known as the Minister for Immigration and Border Protection, now the Minister for Home Affairs, to refuse the grant of a particular type of protection visa known as a Safe Haven Enterprise (subclass 790) visa (SHEV) to the appellant.

2    The appellant is an ethnic Tamil of Hindu faith from the Jaffna district of Sri Lanka. On 13 October 2015, he arrived in Australia as an unauthorised maritime arrival. On 17 December 2015, the bar under s 46A of the Migration Act 1958 (Cth) on him applying for a SHEV was lifted. On 4 April 2016, he lodged an application for a SHEV.

3    In a detailed statutory declaration accompanying his SHEV application, the appellant claimed to fear harm on the basis of being a young male Tamil:

(1)    who had previously come to adverse notice on suspicion of assisting and supporting the former Liberation Tigers of Tamil Eelam (LTTE);

(2)    who had fled Sri Lanka twice;

(3)    whose brother was accused of assisting the LTTE and whose cousins were LTTE fighters killed in the war;

(4)    whose parents supported the LTTE;

(5)    who assisted the LTTE to organise meetings;

(6)    who had been imputed as being opposed to the Sri Lankan government because of his support for the Tamil National Alliance (TNA); and

(7)    who had lived overseas for a long time and applied for asylum.

4    On 11 November 2016, a delegate of the Minister refused the grant of a SHEV to the appellant. In large measure, the appellant’s historical claims were accepted by the delegate. However, the delegate considered that the situation in Sri Lanka had changed significantly since the past harm had been suffered and that merely being a Tamil from Jaffna no longer constituted grounds for being detained by Sri Lankan authorities. The delegate was not satisfied that the appellant would be of particular interest to the authorities or would be suspected of being an ongoing threat to the Sri Lankan state.

5    The appellant’s TNA links were considered by the delegate in the context of that political party holding seats in the parliament, formally leading the opposition and having significant support. The delegate found no recent evidence of systematic targeting of TNA members, supporters or employees. The delegate was not satisfied that the appellant’s asserted fears of harm if he were to return to Sri Lanka were well-founded. None of the remaining claims were accepted as giving rise to a well-founded fear of persecution for a Refugees Convention reason.

Before the Authority

6    On 16 November 2016, the delegate’s decision was automatically referred to the Authority for a limited form of review. The Authority conducts reviews of protection visa refusals in relation to “fast track” applicants, being protection visa applicants who arrived by boat after 13 August 2012 and before 1 January 2014. The Authority does not have the power to grant protection visas, but only to either affirm the delegate’s decision or to refer the case back to the Minister’s Department for further consideration, for example, after making a finding that the applicant is a refugee.

7    The Authority summarised the appellant’s claims at some length and in some detail at [6]. The Authority was satisfied that there were exceptional circumstances to justify considering updated country information at [5]. The bulk of the appellant’s historical claims were also accepted. However, the Authority was not convinced that the appellant or his brother were targeted for arrest by Sri Lankan authorities in 2007 in Colombo. Rather, the Authority considered that they were the subject of a general security exercise, noting that country information indicated that Tamils in Colombo were at a heightened risk of security checks, arbitrary searches, harassment, restrictions on freedom of movement and other forms of abuse since the imposition of new security regulations in April and December 2006. That was particularly so for Tamils such as the appellant who were not registered with the local police station in Colombo.

8    The Authority considered the appellant’s claims as to what had taken place after his arrest in 2007, including him going to India for six months and returning to Sri Lanka. The Authority was not satisfied that the appellant had been imputed to be an LTTE supporter or member at the time of his departure from Sri Lanka, and thus considered that he would not be so perceived upon his return. The Authority concluded that his fear of persecution was not well-founded.

9    While the Authority accepted that the appellant may be identified upon his return as an asylum seeker, and may be questioned, in the absence of imputed LTTE links or an LTTE profile, the Authority was not satisfied that there was a real risk of mistreatment during such questioning. For the same reasons, a claim for complementary protection was not found to be made out.

Before the primary judge

10    By an amended application for judicial review, the appellant advanced the following single ground of review before the primary judge (emphasis in original):

The Immigration Assessment Authority (“the IAA”) found that the applicant was not imputed with an LTTE profile, or being an LTTE supporter, before he left Sri Lanka in 2008. However, the IAA’s reasons leading up to this finding indicate that the IAA made the finding on the balance of probabilities and had some doubts about the finding. In the circumstances, the IAA was obliged to take into account the possibility that the applicant was imputed with an LTTE profile, or as being an LTTE supporter, before he left Sri Lanka in 2008: see Minister v Rajalingam (1999) 93 FCR 220. If the IAA had taken this possibility into account, it may have affected the IAA’s assessment of whether the applicant faces a real chance of persecution on his return to Sri Lanka. For this reason, the IAA fell into jurisdictional error.

11    After summarising in some detail what had transpired before the Authority and reproducing the above ground of review, the primary judge dealt with that single ground of review in an ex tempore judgment as follows:

32.    Mr Zipser, of counsel who appeared on behalf of the applicant took the Court carefully through the whole of the findings by the Authority in relation to the applicant being imputed with an LTTE profile. Mr Zipser’s argument in this regard was one that the Authority had expressed doubt on a fair reading of the Authority’s reasons as a whole and accordingly, should have considered the possibility of what if the applicant was imputed with an LTTE profile in determining the review of the applicant’s visa application.

33.    Mr Zipser argued that there had accordingly been a jurisdictional error of the kind identified in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. Mr Zipser focused specifically on the reference at the end of paragraph 18 to the Authority referring to the applicant’s travel leading the Authority to doubt that he was imputed with an LTTE profile as he fears.

34.    Mr Zipser argued that the structure of the Authority’s reasons supported that as the ultimate finding and that the following reasons were an expansion of that expressed doubt. Mr Zipser argued that the other language found in the Authority’s reasons in respect of not being convinced and not being satisfied of an imputed LTTE profile, should be read in the context of paragraph 18 and accordingly, that on a fair reading as a whole, the Authority failed to consider the possibility of “what if I’m wrong?” It was submitted that the Authority had not made a finding that it had no real doubt that the applicant would be imputed with an LTTE profile.

35.    Notwithstanding Mr Zipser’s skilful argument, I do not accept that paragraph 18 qualifies the whole of the other reasons set out in the Authority’s reasons so as to reflect the existence of a doubt in the finding as to whether the applicant would be imputed with an LTTE profile or as an LTTE supporter. On a fair reading of the decision as a whole, the findings of the Authority reflect no real doubt as to whether or not the applicant had an LTTE profile or would be imputed as having an LTTE profile or as an LTTE supporter. Those adverse findings as summarised above were open to the Authority in the reasons given by the Authority as summarised above.

36.    Specifically, the reasons of the Authority in paragraphs 33, 34, 35, 37, 39, 42 and 43 all support the Authority as making a finding that was not attended by any real doubt. Accordingly, there was no requirement on the Authority to consider the possibility of “what if I am wrong?” No error of the kind identified in the Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 was made by the Authority in the present case. No jurisdictional error is alleged in ground 1 is made out.

37.    Accordingly, the amended application is dismissed.

Appeal to this Court

12    On 12 March 2018, the appellant filed a notice of appeal to this Court. On its face, that notice of appeal appears to have been prepared by someone with legal training. However, only the first of the eight grounds addresses the topic that was agitated before the primary judge. Despite that, each of the other seven grounds of appeal assert on new bases that his Honour failed to hold that there was a jurisdictional error.

13    On 20 April 2018, a registrar of the Court made procedural orders for the preparation of the matter for hearing, including a timetable for the filing and serving of submissions by reference to the appeal hearing date.

14    On 11 July 2018, the registrar listed the appeal for hearing at 2.15 pm on 7 August 2018.

15    The appellant did not file submissions as directed. On 31 July 2018, the Minister did file submissions as directed.

16    At 6.05 pm on 6 August 2018, the night before the date fixed for the hearing of the appeal, the appellant emailed my associate as follows:

Dear Associate,

I am the appellant above named. Presently I live in Melbourne and I find difficult to arrange a Barrister to appear and argue for my said appeal on 7 August 2018 at 2.15pm within a short period and particularly the Lawyers for the Respondent Minister send their outline of submissions and List of Authorities only on 31 July 2018.

I need time to find a barrister on a direct access to appear and argue for my said appeal. In these circumstances I beg that the Court be pleased to adjourn the hearing of my appeal to a suitable date.

I am also sending a copy of this Email to Alice McCormick lawyer for the Minister.  

I believe the Court will consider my request.

I will be appearing tomorrow at the Court.

Yours sincerely,

[Appellant’s name]

17    The appellant was advised by a return email from my associate the next morning, being the morning before the afternoon appeal hearing time of 2.15 pm, that evidence or other material would be required to justify an adjournment in the circumstances and that, if the application for an adjournment was not successful, the hearing of the appeal would proceed immediately.

Adjournment application

18    The appellant appeared in person at the hearing on 7 August 2018 and made submissions in relation to his application for an adjournment. The crux of those submissions, as foreshadowed in his email the evening before, was that he was having difficulty finding a barrister to represent him in Sydney and he was seeking extra time to secure counsel to argue his case. The appellant was unable to provide sufficient further explanation for his delay in seeking the adjournment and his failure to otherwise prepare for the hearing, particularly when the length of time that had passed since the filing of his notice of appeal and the registrar making orders for the preparation of the matter for hearing were put to him.

19    The Minister opposed the grant of an adjournment on the basis that, first, the appellant had had sufficient time to prepare his case and, second, that it would not be in the interests of justice to grant the adjournment, as the matter lacked reasonable prospects of success and there would thus be no utility in doing so.

20    I accepted the Minister’s submissions on both bases, having regard to the five months that had elapsed since the filing of the notice of appeal, and refused the adjournment application. The hearing of the substantive appeal subsequently commenced.

Appeal grounds

21    Seven of the eight grounds in the appellant’s notice of appeal require leave by reason of not having been raised before the primary judge. The Minister opposes the grant of leave, relying upon VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588, where the following was stated:

46.    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47.    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

48.    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

22    The Minister further submits that the Authority made findings that were open to it for the reasons given, and pointed to well-established authority denying any role for this Court to engage in merits review.

Ground 1

23    This ground is as follows (emphasis in original):

The Immigration Assessment Authority (IAA) found that the applicant was not imputed with an LTTE profile, or being an LTTE supporter, before he left Sri Lanka in 2018. However, the IAA’s reasons leading up to this finding indicate that the IAA made the finding on the balance of probabilities and had some doubts about the finding. In the circumstances, the IAA was obliged to take into account the possibility that the applicant was imputed with an LTTE profile, or as being an LTTE supporter, before he left Sri Lanka in 2008: see Minister v Rajalingam (1999) 93 FCR 220. If the IAA had taken this possibility into account, it may have affected the IAA's assessment of whether the applicant faces a real chance of persecution on his return to Sri Lanka. For this reason, the IAA fell into jurisdictional error. The Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error.

24    The Minister in his submissions notes that this ground is identical to the ground pressed before the primary judge. The Minister submits that the primary judge was correct to dismiss this ground, and that the language used by the Authority in making its findings demonstrates that it had no real doubt about whether its findings were correct. The Minister submits that in those circumstances, the Authority was not required to ask, “what if I’m wrong?”, citing Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576.

25    The Minister’s submissions on this ground should be accepted. A careful reading of not just the paragraph relied upon by the appellant before the primary judge, namely [18], but also the other paragraphs of the Authority’s reasons referred to by his Honour, namely paragraphs 33-35, 37, 39, 42 and 43, make it tolerably clear when taken as a whole that the Authority did not retain any real doubt as to the conclusion reached concerning the appellant’s lack of an imputed LTTE profile or imputation of support for the LTTE. This ground of appeal must therefore fail.

Ground 2

26    This ground is as follows:

The Immigration Assessment Authority (IAA) adopted an unduly narrow construction of s473DD of the Migration Act 1958 by confining its determination of the matters set out in s473OO in considering the “exceptional circumstances”. In doing so, it constructively failed to exercise jurisdiction under s473DD of the Migration Act 1958. The Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error.

27    The Minister characterises this ground as being misconceived because the Authority did not find it was prohibited from considering any “new information” by the operation of s 473DD of the Migration Act. The Authority had regard to the review material provided by the Secretary of the Minister’s Department under s 473CB of the Migration Act. The Authority found that the submissions for the appellant dated 29 November 2016 addressed material that was before the delegate, and was therefore not new information so as to impose any restriction or limitation upon having regard to that material. The Authority also exercised its discretion to obtain further country information, as it found that that information was relevant to the review and that there were exceptional circumstances for doing so. Accordingly, the Minister effectively submits, there was no point identified where the Authority adopted any particular construction of the phrase “exceptional circumstances” in s 473DD of the Migration Act, let alone a construction that was unduly narrow or in some other way adverse to the appellant.

28    The Minister’s submissions on this ground should be accepted, with the additional observation that there is simply no observable foundation for this ground of appeal. Leave to rely upon this ground of appeal must therefore be refused.

Ground 3

29    This ground is as follows:

The Authority’s failure to exercise the power, or to consider whether or not to exercise the power, in s473DC(3) of the Migration Act 1958 to put the applicant on notice that, in contrast to the delegate's decision, his credibility concerning some of his claims was now an issue, was unreasonable such that the Authority committed a jurisdictional error. The Federal Circuit Court Judge Street failed to hold that the Authority committed a jurisdictional error.

30    The Minister characterises this ground as contending that the Authority erred by failing to exercise its discretionary power under s 473DC(3) to “put the [appellant] on notice that, in contrast to the delegate’s decision, his credibility … was now in issue”. The Minister submits that there is no basis for this ground and that leave to rely upon it should be refused. In support of that conclusion, the Minister submits that the appellant’s credibility was not in issue in the ultimate decision of the delegate and of the Authority. The delegate found that the appellant “presented as a generally credible witness” and accepted his account of events. The Authority also accepted the appellant’s account of events. In particular, the Authority accepted that the appellant grew up in an LTTE-controlled area and that his family had some involvement with the LTTE. The Authority also accepted that the appellant’s family supported the TNA, that he was questioned, beaten and subject to reporting requirements, that he went to India and upon his return was detained, beaten and sexually assaulted and that the CID went to his family home and asked about him and his brothers. However, the Authority did not accept his claims of a well-founded fear of persecution in light of country information regarding the changed circumstances in Sri Lanka.

31    A careful and thorough consideration of the Authority’s reasons makes it tolerably clear that the two barriers to the appellant succeeding were unrelated to issues of credibility. Rather, having accepted the appellant’s account of events, the Authority was unable, especially by reference to updated country information, to accept that the appellant would be imputed to have an LTTE profile or be a supporter of the LTTE. This was no more than an assessment of the material in the drawing of conclusions. It did not depend upon adverse credibility findings. It follows that this proposed ground of appeal cannot succeed and leave to rely upon it must be refused.

Grounds 4, 6 and 8

32    These grounds are as follows:

Fourth ground of appeal

The Immigration Assessment Authority (IAA) misapplied the test in s.36(2)(a) of the Migration Act 1958 by failing to take into account the historic suspicion held by the authorities in Sri Lanka towards the applicant, which suspicion would result in his being imputed with a pro-LTTE opinion although the Authority accepts the applicant's claims to have been detained and beaten on suspicion of being an LTTE supporter. The Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error.

…

Sixth ground of appeal

The Authority failed to consider the political and security situation in Sri Lanka into the reasonably foreseeable future when the political and security situation in Sri Lanka was fluid. Therefore, the Authority committed a jurisdictional error. The Federal Circuit Judge Street failed to hold that the Authority did not apply the ‘real chance test’ as explained in Minister v Wu Shan Liang and thus committed a jurisdictional error.

…

Eighth ground of appeal

The Authority did not properly address and deal with the likelihood of pre-trial detention in considering the applicant's claim for a protection visa on the complementary protection ground. The Federal Circuit Court Judge Street failed to hold this was an error by the Authority.

33    The Minister characterises each of these grounds of appeal as being nothing more than an attempt to engage this Court, for the first time on appeal, in impermissible merits review. That submission should be accepted. Careful consideration of each of these three grounds of appeal reveals that, in substance, they take issue with the weighing and assessment of the material that was before the Authority, rather than genuinely raising any legal, let alone jurisdictional, error. Leave must therefore be refused to rely upon these grounds.

Ground 5 (in the form of a second ground numbered “4”)

34    This ground is as follows:

The Authority denied the applicant natural justice by failing to put him the country information that it relied upon. Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error.

35    The Minister submits that this ground is misconceived because, subject to Part 7AA of the Migration Act, the Authority has no obligation to put review material to the appellant: see s 473DA of the Migration Act. The Minister relies upon statements of principle supporting that conclusion in Minister for Immigration and Border Protection v BPS16 [2017] FCAFC 176; 158 ALD 198 at [93] and DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [58]-[65].

36    The Minister’s submissions on this ground should be accepted. There was no obligation on the part of the Authority to give the appellant any opportunity to comment on updated country information. Accordingly, this ground of appeal is without merit and leave to rely upon it must be refused.

Ground 7

37    This ground is as follows:

The [Authority] failed to hold that the harm the applicant would face if he were to Sri Lanka was due to the essential and significant reasons of his real or imputed political opinion as supporter of LTTE and is motivated and deliberate conduct of his persecutors and it amounts to systematic and discriminative conduct. This was a jurisdictional error. The Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error.

38    The Minister submits that the Authority made dispositive findings in relation to the claim being advanced by way of this ground of appeal. In particular, the Minister submits that the Authority found that the appellant would not face harm on account of any imputed support for the LTTE, his support for the TNA or for being a member of his family (in light of their prior activities). The Minister therefore submits that in circumstances where the Authority found that the appellant did not have a well-founded fear of serious harm in the reasonably foreseeable future, having regard to s 5J(1) and (4)(b) of the Migration Act, there was no requirement to make findings addressing each of the cumulative requirements set out in s 5J(4)(a) and (c).

39    The Minister’s submissions on this ground should be accepted. Once an essential and indispensable element of a claim in support of a well-founded fear of harm amounting to persecution has not been made out, there is no obligation on the decision-maker to consider the balance of the matters required to be satisfied upon the assumption that such a threshold has been satisfied. In this case, the Authority made clear findings of an absence of a basis for a well-founded fear of harm and, in those circumstances, there was no need for the Authority to go further and consider whether a political opinion which was not found to be imputed to the appellant would, had it existed, have been the “essential and significant reason” for him fearing persecution, or that such persecution would be the “motivated and deliberate conduct of his persecutors” or would amount to “systematic and [discriminatory] conduct”, as per s 5J(4)(c) of the Migration Act. As this ground of appeal is thus also devoid of merit, leave to rely upon it must be refused.

Conclusion

40    As the first ground of appeal must fail, and leave must be refused to rely upon the remaining seven grounds of appeal, the appeal must be dismissed with costs.

Associate:

Dated:    24 August 2018