FEDERAL COURT OF AUSTRALIA

DAY16 v Minister for Immigration and Border Protection [2018] FCA 1750

ORDERS

THE COURT ORDERS THAT:

1.    The application to amend the notice of appeal in the form of the Proposed Amended notice of appeal from the Federal Circuit Court of Australia dated 7 November 2018 be refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the application and the appeal.

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

REASONS FOR JUDGMENT

BESANKO J:

1    This is an appeal from an order made by the Federal Circuit Court on 27 June 2018. On that day, the Federal Circuit Court made an order dismissing the appellant’s application for judicial review in relation to a decision of the Immigration Assessment Authority (the Authority). The appellant acting in person filed a notice of appeal on 10 July 2018 and it contains four grounds of appeal.

2    The appellant was described by the Authority as a Tamil male from Sri Lanka. He arrived in Australia by boat on 2 October 2012. He claims that he and members of his family are affiliated to the LTTE in Sri Lanka and, therefore, is at risk of suffering persecution at the hands of the Sri Lankan authorities if he returns to Sri Lanka. On 22 September 2015, he made an application for a Safe Haven Enterprise Visa (SHEV). On 14 July 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The matter was referred to the Authority under Part 7AA of the Migration Act 1958 (Cth) (the Act) and, on 7 October 2016, the Authority affirmed the decision not to grant the referred applicant a protection visa.

3    On 17 October 2016, the appellant acting in person, filed an application for judicial review in the Federal Circuit Court. At some point thereafter, the appellant secured legal representation and an amended application for judicial review dated 11 December 2017 was filed. The appellant was represented by counsel at the hearing. The Federal Circuit Court dismissed the amended application on 27 June 2018 (DAY16 v Minister for Immigration and Anor [2018] FCCA 1577).

4    As far as I can see, the grounds raised in the appellant’s notice of appeal reflect matters raised by the appellant through his legal representatives in the Federal Circuit Court. A Registrar of this Court made orders for the filing of submissions by the parties. The appellant did not file any submissions within the time fixed for him to do so. The first respondent, the Minister, filed submissions and those submissions addressed the then grounds of appeal.

5    At the hearing, a barrister acting on a direct access basis, appeared for the appellant before me. He abandoned the existing grounds of appeal and sought leave to file an amended notice of appeal and leave to raise a ground of judicial review that had not been raised in the Federal Circuit Court. The “new ground of judicial review” is as follows:

The Authority made a jurisdictional error of legal unreasonableness by failing to consider exercising or, in the alternative, failing to exercise s 473DC(1) of the Migration Act 1958 (Cth) so as to obtain further country information regarding the degree of societal discrimination, and its manifestation against Tamils specifically, referred to in the Department of Foreign affairs and Trade Country Information Report on Sri Lanka dated 18 December 2015.

6    Should leave be granted to raise a new ground of judicial review on appeal? Should leave be granted to file an amended notice of appeal? The matters which are relevant to those questions (and which overlap) are as follows.

7    The appellant was represented by solicitors and senior counsel before the Federal Circuit Court and he put a number of detailed legal arguments mainly directed to the issuing of certificates by a delegate of the Minister under ss 473GA(1) and 473GB of the Act. Those arguments were unsuccessful and were pursued in the notice of appeal to this Court until shortly before the hearing. They are now abandoned. The appellant, now with new legal representation, seeks to raise a new ground of judicial review, one which was not raised in the Federal Circuit Court and one which is quite unrelated to the matters raised before that Court. The explanation for this change in approach was not expressly identified, but I infer that the appellant’s new barrister considers that the new ground of judicial review has merit and should be pursued and the existing grounds of appeal should not be pursued. The appellant submitted that I should permit him to pursue the new ground of judicial review because it is expedient in the interests of justice to do so. He referred to CZY16 v Minister for Immigration and Border Protection [2018] FCA 1171 at [36] per Robertson J. The argument seemed to be that the new ground of judicial review is correct and, therefore, it is expedient in the interests of justice to permit it to be raised. However, the matter is not that simple and the interests of justice requires a consideration of a number of matters. It is trite to say that ordinarily, all grounds of judicial review should be raised at the trial and new grounds formulated by counsel should not be allowed on appeal, particularly when the appellant was represented by counsel in the trial court. I do not need to pause on the matters relevant to the leave question because I have heard the argument about the merits of the new ground of judicial review and I consider that it should be rejected.

8    The starting point for the consideration of the new ground of judicial review is the Authority’s examination of country information which deals with societal discrimination against certain ethnic groups in Sri Lanka and how it impacts (assuming it exists) on Tamils in particular. The Authority had a report from the Department of Foreign Affairs and Trade (DFAT) entitled, “DFAT Country Information Report – Sri Lanka”, 18 December 2015, CISEC96CF14143 (DFAT Report). The critical passage is the Authority’s reasons is as follows (at [12]):

More generally, DFAT advises that there are currently no official laws or policies that discriminate on the basis of ethnicity or language in Sri Lanka, which includes education, employment or access to housing and the report also suggests that implementation of laws and policies by the current Sirisena government is generally without discrimination. I accept there is some indication by DFAT of societal discrimination against certain ethnic groups in Sri Lanka, but the information is silent as to how this specifically manifests and the impact it has on Tamils specifically. Significantly, though, the country information overall indicates there have been significant positive developments for Tamils in the country politically and socially, and that the improvements are evidenced by the decreases in monitoring and harassment. I accept the applicant may still encounter a degree of societal discrimination and monitoring, but I am not satisfied that this would, separately or cumulatively, constitute serious harm. Ultimately, even accepting there is a level of societal discrimination still present in Sri Lanka, the information before me does not indicate that ordinary Tamils, including Tamil males from the North, are at risk or face a real chance of suffering a level of discrimination or any other mistreatment that would amount to serious harm.

(Citations omitted.)

9    Put shortly, the appellant’s submission is that in this passage the Authority recognises that it did not have the country information it needed to assess the likely impact of societal discrimination on the appellant who, as I have said, is a male Tamil. The appellant submitted that the Authority’s failure to seek further country information was legally unreasonable. He acknowledged that he had not put forward any evidence of what further inquiries and searches may have revealed, but he submitted that was not fatal to the argument. The appellant did not argue that the Authority should have sought further information from him. His argument is that it should have sought further country information.

10    The relevant statutory power in Part 7AA in the Act is s 473DC which is as follows:

473DC Getting new information

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

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

(b)    the Authority considers may be relevant.

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

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

(a)    in writing; or

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

11    The appellant relied on the recent decision of the Full Court of this Court in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (CRY16) in support of its argument that the Authority’s failure to consider whether to seek further country information or its decision not to seek further country information was legally unreasonable. In that case, the delegate found that the applicant was not “a credible witness” and rejected his claims for protection. The Authority affirmed the delegate’s decision, but on a different basis. It found that the applicant did not face a real chance of persecution in all areas in Lebanon and could relocate to Beirut. The Authority did not consider seeking documents and information from the applicant about his relocation to Beirut. The Court held that this was legally unreasonable and constituted jurisdictional error. The Court said (at [82]):

Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

12    The appellant also drew the Court’s attention to the following statement by Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 (at [21]):

There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.

    (Citation omitted.)

13    The appellant submitted that the Court should infer from the Authority’s reasons that it did not consider whether to get further country information about the impact and effects of societal discrimination against Tamils, rather than considered it and decided against such a course. He seemed to accept that his case of legal unreasonableness was more difficult if the latter was the proper inference. He acknowledged that the absence of a reference in the Authority’s reasons to considering the matter was not decisive that the matter had not been considered (BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [49]).

14    The Minister accepted that I was bound by the decision in CRY16, but pointed out that that case differed from the present case in two important respects. First, that case involved a failure to seek information from the applicant, not as in this case, further country information. The Minister referred to well-known authority concerning the Court’s reluctance to interfere with an administrative body’s assessment of the accuracy and weight to be placed on country information. For example, the Full Court of this Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]):

…By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.

These observations were applied by a judge of this Court to an authority acting under Part 7AA in BPC16 v Minister for Immigration and Border Protection [2018] FCA 920. Secondly, the Minister submitted that CRY16 was a strong case of legal unreasonableness, far different from the circumstances in this case. In CRY16, the Authority had relied on a matter as dispositive which was entirely different from that relied on by the delegate.

15    The statutory power in s 473DC is to get new information. However, there is no duty on the Authority to do so whether a request is made by the referred applicant or any other person or “in any other circumstances”. The statutory context is Part 7AA of the Act. The nature of the review that the Authority is required to conduct under Part 7AA has been considered in a number of cases. It is not necessary to provide other than a brief summary of the relevant provisions. The Authority is to be given certain material by the Minister (s 473CB). The Authority has the power to affirm the decision or to remit it for reconsideration (s 473CC). The requirements of the natural justice hearing rule are those, and only those, identified in the Part. Subject to the Part, the Authority is to conduct the review on the material provided to it and it is not required to accept or request new information or interview the referred applicant. New information and how it is to be dealt with is the subject of ss 473DC-473DF. The Authority is to carry out its functions with the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 and, in reviewing a decision, it is not bound by technicalities, legal forms or rules of evidence.

16    The DFAT Report was before the delegate and discussed by him in some detail. The Authority does not say in its reasons whether it did or did not consider getting additional country information. In those circumstances, it is difficult to draw an inference one way or another. The onus is on the appellant to establish that the Authority did not consider exercising the power. In this case, in the absence of reasons, similar matters are to be considered whether it be inferred that the Authority did or did not consider the exercise of the power.

17    A significant obstacle for the appellant is that he has not identified any additional relevant country information which the Authority could have obtained. He did have the opportunity at the start of the referral process to refer the Authority to additional country information which he considered to be relevant. In any event, and leaving that to one side, I am unable to conclude that the Authority’s act in not considering the exercise of the power to get new information or to exercise the power to do so lacked an evident and intelligible justification (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] per Hayne J, Kiefel J (as her Honour then was) and Bell J). Country information is often variable in terms of its quality or reliability and is often, but not always, quite general. It can become out of date or not representative or wholly representative of the position at the time of decision. Clearly, these considerations do not provide a complete answer to a challenge, but they are matters of context to be borne in mind. It is true that the Authority noted that there was a lack of information as to how the societal discrimination it identified specifically manifested itself and the impact on Tamils specifically. However, it noted from “the country information overall” that it indicated significant positive developments for Tamils and that the improvements were evidenced by decreases in monitoring and harassment. Furthermore, the Authority then proceeded on the basis that there is a level of societal discrimination.

18    The appellant has not established legal unreasonableness. The application to amend the notice of appeal is refused and the appeal is dismissed with costs.

Associate:    

Dated:    15 November 2018