FEDERAL COURT OF AUSTRALIA
IMMIGRATION ASSESSMENT AUTHORITY
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appellant pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This is an appeal from orders of the Federal Circuit Court of Australia made on 5 February 2018, dismissing the appellant’s application to that Court under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority: CCQ17 v Minister for Immigration & Anor  FCCA 244.
2 The Authority’s decision, made on 20 April 2017, affirmed a decision of the delegate of the then Minister for Immigration and Border Protection (now the Minister for Home Affairs) not to grant the appellant a Safe Haven Enterprise (Subclass XE-790) visa (SHEV). The delegate found the appellant failed to meet the criteria for the grant of a visa under the Act.
3 The appellant is a Tamil from the Northern Province of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 13 October 2012.
4 The appellant made an application for a SHEV on 18 April 2016.
5 The appellant claimed that if he returned to Sri Lanka he would face serious harm (including death). He was afraid of harm from the Sri Lankan Army (SLA), police authorities and the Eelam People’s Democratic Party (EPDP). He was afraid of harm because of his alleged activist affiliation and his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE).
6 The appellant made the following claims in support of his application:
(1) Between 2004 and 2007, the appellant was badly beaten between seven and ten times by people in civilian clothing who questioned him as to whether he was an LTTE supporter. On one or more of these occasions he was threatened with a gun.
(2) In 2006, while living in [redacted], an area controlled by the SLA, people in civilian clothing came to the appellant’s house on multiple occasions and asked about a neighbour, “Mr P”, who had been killed. On one of these occasions both his father and mother were beaten.
(3) The appellant was beaten 3 times on other occasions for visiting relatives in [redacted] as at the time, people of Tamil ethnicity were not allowed to travel outside the areas they lived.
(4) In 2007, due to his mother fearing for his safety, the appellant travelled to India by plane, using his passport. He went to a refugee camp in Rameshwaram. He remained in the refugee camp until 2010. On 29 December 2010, the appellant returned to Sri Lanka to be with his family after the civil war between the SLA and the LTTE had ceased.
(5) On his return, the appellant spoke to a friend and neighbour, “Mr S”, who intended to publish an article which claimed that the movement of sand from coastal areas was unsustainable. The article would be critical of the EPDP. Many people in the town were aware of Mr S’s intention to publish.
(6) On 31 December 2010, Mr S was shot and killed. The SLA asked around the neighbourhood about the murder and either the SLA or the EPDP came to the appellant’s home and questioned him. The appellant told the people that came to his home that he suspected Mr S’s murder was due to the article protesting the movement of sand. The SLA accused him of having knowledge of who killed his friend and threatened him with their batons.
(7) The appellant feared that he would be killed by the same people that killed Mr S as he had spoken to others in his community about the article and had told them he agreed with it. The appellant suspected that people in his community might believe the appellant also planned to publish a similar article. Many people in the community believed the EPDP to have been involved in Mr S’s death.
(8) After being questioned by the SLA, the appellant went into hiding for 3 to 4 months at his uncle’s house in [redacted].
(9) The SLA visited his parents’ house and asked about his whereabouts 4 to 5 times during that period.
(10) The appellant then moved to Colombo where he stayed in 3 to 4 places over 14 months in an attempt to avoid the EPDP discovering his location. The SLA visited his parents’ home approximately 3 or more times in this period.
7 The appellant claimed that, at the end of this period, he made arrangements to leave Sri Lanka and travelled by plane to Singapore using his passport.
8 In Singapore, the appellant was introduced to a man named “Mr D”. Mr D took the appellant’s passport and made arrangements for him to travel to Malaysia by car, and then to Indonesia. In Indonesia, a boat was organised for the appellant’s travel to Australia. On requesting that Mr D return his passport, Mr D ripped it up.
9 The appellant arrived at Christmas Island on 13 October 2012.
the delegate’s decision
10 The delegate was not satisfied that the appellant met the refugee criterion in s 36(2)(a) of the Act. The delegate concluded that the appellant did not meet the complementary protection criterion in s 36(2)(aa) of the Act.
11 It is not necessary to set out the delegate’s conclusions and reasoning other than to note that the delegate relied on various items of country information including a “DFAT Country Information Report Sri Lanka”, 18 December 2015 (2015 DFAT Report).
the authority’s decision
12 The Authority affirmed the decision of the delegate not to grant the appellant a protection visa.
13 The Authority accepted that:
(1) between 2004 and 2007, the appellant was suspected of having LTTE links and interrogated and beaten on a number of occasions (although fewer than claimed in the appellant’s written application): A;
(2) in 2006, the appellant’s neighbour, Mr P, was shot and killed, and that after the death, plain clothed men interrogated the appellant, and beat his parents: A;
(3) in 2007, the appellant was sent by his parents to India due to poor living conditions and the continuing adverse attention he received from the SLA due to being a young Tamil male in an area where the LTTE was active: A.
14 The Authority did not accept parts of the appellant’s account of events given at his SHEV interview regarding the death of his friend, Mr S, after his return to Sri Lanka. The Authority stated at A to A and A:
16. In particular, the applicant’s evidence at the SHEV interview regarding Mr S was vague and disjointed, which contrasted with his evidence about other events such as the physical assaults he was subjected to prior to 2007, which were less recent experiences. I am prepared to accept the applicant had a friend called Mr S, who may have been murdered for the reasons the applicant has claimed, but I do not accept the applicant was in any way linked to this matter, or subject to the adverse attention of the SLA as a result.
17. The applicant stated he returned from India on 30 December 2010 and that evening spoke to his friend Mr S, who told him that the sand moving project was causing water to flow into their village, and the project should be stopped. Mr S told the applicant “he was writing about it on his computer” and the next morning Mr S was found murdered. In the applicant’s written claims he has stated he had told people he was also opposed to the project and was concerned other people believed he, the applicant, would publish a critical article. Given the applicant had only been home for a few hours, after an absence of three years, during which he has not claimed he had any contact with Mr S, I find this implausible. On the evidence before me I do not accept the applicant had any sort of conversation with Mr S the night before his murder, that the applicant told people he was opposed to the project, or that the local community believed the applicant was going to continue on with the work of Mr S.
18. I also note the applicant has been inconsistent as to whether it was the SLA or the EPDP who came to question him, his parents and other neighbours the day after the murder, and which group continued to question the applicant’s parents about his whereabouts while he was in hiding. The delegate asked the applicant who he believed had murdered Mr S and he responded it was the EPDP. The delegate asked the applicant if the SLA had come to ask him about Mr S’s murder and he replied they had not, but the EPDP had. However in the applicant’s written claims he has stated it was the SLA who were searching for him when he was hiding in [redacted] and Colombo.
20. On the evidence before me I do not accept the applicant was questioned about Mr S’s murder the day after it occurred or that the SLA and/or EPDP had any interest in him regarding this matter. As I am satisfied the SLA and/or the EPDP did not have an interest in the applicant for any other reason, I do not accept the SLA and/or EPDP questioned the applicant’s parents four to five times when he was hiding in [redacted], or three times after he had left [redacted] for Colombo, where he claims he resided for fourteen months before departing Sri Lanka for Singapore by plane. On the evidence before me I am not satisfied the applicant has a profile with the Sri Lankan authorities because of the murder of his friend Mr S, that he was ever wanted for questioning or that he was ever in hiding for this reason. I am not satisfied the applicant faced a real chance of harm from the SLA or EPDP in relation to his friendship with a claimed activist, Mr S, or any imputed anti-Sri Lankan government political opinion arising from this.
15 The Authority was satisfied that the appellant had departed Sri Lanka and travelled to Singapore legally without incident: A.
16 The Authority accepted that, on returning to Sri Lanka, the appellant may be considered a returning asylum seeker by authorities: A. However, country information did not indicate that returning Tamil asylum seekers faced a real risk of serious harm: A, , , , , .
17 The Authority also concluded, as had the delegate at D, that the monitoring and harassment of Tamils in day-to-day life had eased since the war had ended and that the forced registration of Tamils had ceased: A. In reaching the conclusions at A, the Authority relied upon a report being “DFAT Country Information Report – Sri Lanka” , 24 January 2017 (2017 DFAT Report).
18 The Authority had obtained the 2017 DFAT Report as “new information” in accordance with its discretionary power to do so: A. The 2017 DFAT Report had not been before the delegate at the time of the decision and was clearly considered, by the Authority, to be relevant to its review – cf: s 473DC(1) of the Act.
19 The Authority also relied on the 2017 DFAT Report in reaching conclusions at A,  and . It was not suggested that these conclusions were materially different to any conclusion which had been reached by the delegate.
20 The Authority found that the appellant was not a refugee within the meaning of s 5H(1) of the Act and therefore did not meet the requirements of s 36(2)(a) of the Act: A.
21 The Authority also found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that the appellant would suffer significant harm and therefore did not meet s 36(2)(aa) of the Act: A.
Federal Circuit court
22 The appellant relied on three grounds of review before the Federal Circuit Court. Only the second is now relevant for reasons which will become apparent:
2. IAA made a jurisdictional error of natural justice.
IAA did not put to the Applicant the country information relied on.
23 The primary judge outlined the reasoning and decisions of the delegate and Authority. His Honour addressed the appellant’s oral submissions at the hearing, noting at J that “in substance, the appellant’s submissions from the bar table invited this Court to engage in impermissible merits review. Nothing said by the appellant from the bar table identified any jurisdictional error”.
24 The primary judge reasoned, relevantly to ground 2, at J, :
31. In relation to ground 2, on the face of the material before the Court, the Authority complied with its obligations of procedural fairness by giving the applicant an opportunity to put on new information and put on submissions.
32. The statutory regime under Part 7AA expressly provides for the Authority to receive new country information without providing same to the applicant for comment or submission under [s 473DE(3)(a)] of the Act. There was no denial of natural justice by the Authority taking into account more recent country information. No jurisdictional error was made out by ground 2.
25 The Federal Circuit Court dismissed the appellant’s application.
26 The appellant’s notice of appeal raised five grounds. The first three were, in substance, the grounds relied upon in the Federal Circuit Court. The fourth and fifth grounds were new.
27 Two days before the hearing, on 29 October 2018, the appellant by his counsel, whom he had recently retained, submitted a written outline of submissions indicating that ground 2 of the notice of appeal was pressed. At the hearing of the appeal, the appellant formally abandoned grounds 1, 3, 4 and 5.
28 There was some debate about whether ground 2 as pressed was strictly within the terms of ground 2 as pleaded or within the terms of ground 2 before the Federal Circuit Court. If it was new, the appellant required leave: Coulton v Holcombe (1986) 162 CLR 1; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588. Whether or not leave should be granted depends on whether, in all the circumstances, it is in the interests of justice to do so, notwithstanding that the point should have been, but was not, taken in the court below.
29 The parties were prepared to argue the point as it had been put in written submissions. The expedient course to adopt in the particular circumstances of this case is to grant leave to the extent necessary.
30 The appellant’s single remaining ground of appeal, ground 2, was:
2. The Authority denied the applicant natural justice by failing to put [to] him the country information that it relied upon. Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error.
31 Division 3 of Pt 7AA of the Act, together with ss 473GA and 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). Section 473DA(1) provides:
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
32 Section 473DE of the Act (which is in Division 3) provides that, in the particular circumstances identified in s 473DE(1)(a), new information must be given to the referred applicant, the relevance of the new information to the review must be explained and the referred applicant must be invited, orally or in writing, to comment on the new information. Section 473DE(3)(a) specifically excludes from this requirement new information that “is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member”.
33 Section 473DE relevantly provides:
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non-disclosable information; or
(c) is prescribed by regulation for the purposes of this paragraph.
34 The 2017 DFAT Report falls within s 473DE(3)(a) and therefore did not need to be put to the appellant by the Authority despite the terms of s 473DE(1): CMY17 v Minister for Immigration and Border Protection  FCA 1333 at ; EKW17 v Minister for Immigration and Border Protection  FCA 1366 at -.
35 The appellant, however, submitted that the error was one of legal unreasonableness in failing to consider inviting the appellant to “comment” on the new country information under s 473DC of the Act.
36 Section 473DC(1) gives the Authority a discretion to “get any documents or information (new information)” that were not before the Minister when the decision was made and that the Authority considers relevant. Section 473DC(3), which does not limit s 473DC(1), gives the Authority a discretion to “invite a person … to give new information” in writing or at an interview.
37 Section 473DC provides:
(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.
38 There may be circumstances in which it would be legally unreasonable to fail to consider exercising the discretion under s 473DC: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at ; DGZ16 v Minister for Immigration and Border Protection  FCAFC 12 at ; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 at , . In this regard, the appellant bears the onus of establishing:
(1) the factual foundation for the conclusion that the Authority did fail to consider exercising the discretion: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs  FCAFC 117 at  (Hill, Sundberg and Stone JJ);
(2) that there was jurisdictional error in failing to consider exercising the discretion: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at  (Gummow J)
39 Section 473EA(1) does not require the Authority’s written statement of decision to include a statement as to the exercise of a procedural decision in the course of review: BCQ16 v Minister for Immigration and Border Protection  FCA 365 at , , ; BVD17 v Minister for Immigration and Border Protection  FCAFC 114 at  (both cases concerning s 473GB). The absence of a reference to the consideration or exercise of a discretion does not of itself give rise to an inference that its exercise was not considered: SZGUR at  (French CJ and Kiefel J); BVD17 at . That is not to deny that there may be circumstances where the lack of any information in the reasons as to, or reference to consideration of, the exercise of the discretion supports an inference that the discretion was not considered: BCQ16 at ; BVD17 at .
40 The appellant submitted that it should be inferred that the Authority failed to consider exercising the discretion under s 473DC.
41 It is unnecessary to decide whether or not that is the case. Even if the Authority failed to consider exercising the discretion under s 473DC in the present case, the circumstances were not such that any such failure was legally unreasonable with the consequence that the decision was vitiated by jurisdictional error.
42 There are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. An example, however, is provided by CRY16. That was a case in which an issue arose before the Authority, which had not been considered by the delegate and which was “dispositive” in the Authority’s conclusions on review. DZU16 was also such a case. The present case is not. In stating that this case does not fit within the example provided by CRY16, I do not intend to say that it must fit within the example provided by that case in order to be characterised as legally unreasonable.
43 In CRY16, the primary judge had concluded that the Authority acted unreasonably in not considering whether to exercise its discretion to provide the referred applicant an effective opportunity to address a new issue which the Authority found “dispositive”, being the potential for the appellant to relocate within his country of origin. The referred applicant submitted that, given the Minister’s delegate had not given any consideration to the issue of relocation, the Authority erred in failing to consider exercising its discretion under s 473DC to get documents or information on the issue of relocation, including information from the appellant pertaining to his personal circumstances.
44 The Full Court explained (at ) that the failure by the Authority to consider obtaining new information lacked an evident and intelligible justification, in circumstances where:
(1) the Authority knew that it did not have information on the referred applicant’s particular circumstances and the impact upon him of relocation to Beirut;
(2) (the Authority knew that) the referred applicant was likely to have information on his particular circumstances and the impact upon him of relocation to Beirut;
(3) the Authority did not have that information because the question of relocation was not explored, or the subject of findings, by the delegate; and
(4) the Authority’s failure to consider the exercise of the discretionary power meant that it “disabled itself” from considering what was reasonable, in the sense of “practicable”, in terms of relocation.
45 The question of legal unreasonableness is to be approached through the lens of the specific statutory scheme and not through the lens of the principles of natural justice unaffected by statute: CRY16 at ; DZU16 at ; BMV16 v Minister for Home Affairs  FCAFC 90 at . As noted earlier, Division 3 of Part 7AA (with ss 473GA and 473GB) contains its own exhaustive statement of the natural justice hearing rule: s 473DA(1).
46 The discretion in s 473DC(1) and (3) must be read with s 473DC(2) which provides that the Authority “does not have a duty to get, request or accept, any new information” whether requested to do so or in any other circumstance. Whilst this does not deny that the Authority must act reasonably in exercising or considering the exercise of its discretionary powers, what is reasonable must be assessed according to the statutory scheme. As was said in BCQ16 at :
Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at , per Hayne, Kiefel and Bell JJ; , per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.
47 In addition to s 473DC(2), a further important aspect of the statutory scheme is that s 473DE(3)(a) expressly contemplates that new information (such as new country information) can be used to affirm a decision (see s 473DE(1)(a)(ii)) without giving a referred applicant an opportunity to be heard. That does not mean that s 473DC could never be used in circumstances where the exclusion in s 473DE(3)(a) applied. Nor is to say that the particular circumstances of a case may be such that it would be legally unreasonable not to exercise or consider exercising the discretion in s 473DC despite there being no obligation (as a consequence of the exclusion in s 473DE(3)(a)) to afford the opportunity to be heard contemplated by s 473DE.
48 It is also relevant to note that the statutory scheme contemplated by Part 7AA is one of limited review on the papers with a default position of not accepting or requesting new information: s 473DB(1). Section 473FA(1) contains a general exhortation that, in carrying out its functions under the Act, the Authority “is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”.
49 These features of the statutory scheme are relevant to the identification of the scope and purpose of s 473DC in order then to evaluate whether the discretion was exercised in a way which was legally reasonable in the sense described in CRY16 and BMV16 at , or whether a failure to consider exercising the discretion was legally unreasonable.
50 In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at  (Allsop CJ, Griffiths and Wigney JJ), Allsop CJ explained that the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation:
… [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …
51 In determining whether an established failure to consider exercising a discretionary power was legally unreasonable, it is necessary to:
(1) identify the failure with precision;
(2) examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and
(3) evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.
52 As to (1), assuming (without deciding) that the Authority failed to consider exercising the discretion under s 473DC, the failure was a failure to invite the appellant to comment on the 2017 DFAT Report.
53 As to (2), the statutory scheme has been referred to above, in particular at  to . Part 7AA restricts the rules of natural justice. It specifically contemplates the use of country information as a reason for affirming a decision without affording an opportunity to the referred applicant to be heard – see: s 473DE, in particular s 473DE(1)(a)(ii) and s 473DE(3)(a). As noted at  above, that does not mean there is necessarily no role for s 473DC to play in a particular case. The statutory scheme expressly states that there is no duty to get new information: s 473DC(2).
54 As to (3), assuming there was failure to consider exercising the discretion under s 473DC, such a failure does not have the characteristics of being legally unreasonable. The appellant did not show that the way in which the 2017 DFAT Report (which itself was “new information”) was used by the Authority gave rise to any new issue; nor did the appellant show that the principle of legal unreasonableness otherwise required the Authority to consider its discretion under s 473DC to seek new information from the appellant. The appellant did not show, for example, that the 2017 DFAT Report was used in a way which was materially different to the way in which the delegate had used the 2015 DFAT Report and the other country information which had been before him. Indeed the appellant conceded, properly, that the two reports were used in the same way to support materially similar conclusions. The only matters which the appellant relied upon were the fact the reports had different dates and that they were not identical. This is not sufficient to support a conclusion that it was legally unreasonable to fail (assuming that to be the case) to consider exercising the discretion under s 473DC.
55 The appellant submitted that the failure to “invite comment” under s 473DC(3) was legally unreasonable because the failure had the effect that a decision was made by the Authority in reliance upon information the significance of which the appellant was left unaware. The appellant submitted that there was no intelligible justification for doing so.
56 This submission incorrectly views the matter through the lens of natural justice. It fails to recognise that the statutory scheme expressly contemplates review decisions being made on the basis of information the significance of which the review applicant is unaware. Section 473DE(3), for example, expressly contemplates such a result. What the appellant had to show was that in circumstances where:
(1) the statutory scheme restricted the natural justice hearing rule; and
(2) s 473DE(3)(a) disengaged what otherwise would be the operation of s 473DE(1) (for present purposes it is not necessary to decide whether s 473DE(1) would in fact have applied – that is whether s 473DE(1)(a)(i) and (ii) were satisfied),
there was nevertheless a legally unreasonable failure to exercise the discretion conferred by s 473DC.
57 The appellant has failed to do so.
58 The appeal is dismissed.