FEDERAL COURT OF AUSTRALIA

EXV17 v Minister for Home Affairs [2018] FCA 1780

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to amend the Notice of Appeal is refused.

2.    The appeal is dismissed.

3.    The appellant is to 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

DERRINGTON J:

Introduction

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (FCC), delivered on 30 May 2018 which dismissed an application for judicial review of a determination of the Immigration Assessment Authority (IAA) to affirm the decision of a delegate of the Minister for Immigration and Border Protection. The decision of the delegate was to not grant the appellant a Safe Haven Enterprise visa (SHEV) because it was not satisfied that Australia owed the appellant protection obligations as outlined in ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

2    On 7 June 2018, the appellant filed a Notice of Appeal from the decision of the FCC. The notice was drafted by the appellant.

Background

3    The appellant is a citizen of Sri Lanka, he left Sri Lanka in 2008 and went to India until 18 October 2012, when he left for Australia. He arrived here as an unauthorised maritime arrival on 3 November 2012. On 1 April 2012, he lodged an application for a SHEV. In support of that application, he made claims to the following effect:

(a)    That in 2007 the Sri Lankan Army (SLA) threatened to kill him and harassed him and his father on the basis that the father had provided food to members of the Liberation Tigers of Tamil Eelam (LTTE) when they ate at the family restaurant. He also claimed that, in turn, the LTTE threatened them for providing food to the SLA at the restaurant. Consequently, they had to close their restaurant in 2008.

(b)    A friend and his father went missing after being accused by the SLA of being connected to the LTTE because a bomb exploded near their house. The suggestion was that the friend was abducted by the SLA and, perhaps, killed. The friend and his father had worked in the coconut and mango business. It was put that because the appellant and his family did similar work, they might also be abducted.

(c)    In 2007, the appellant and his father visited a market to sell vegetables and were forced to lie on the ground after fighting broke out between the LTTE and SLA. The appellant’s father was dragged away, a gun was pointed at him and he was arrested. The captor said that if one of the SLA died, they would kill 10 of the local people.

(d)    The appellant’s father was released after a neighbour told the SLA they were good people and that the father was not a LTTE fighter. The SLA, allegedly, kept a photo of the family and said that if anything similar happened they would kill the father. For this reason, the family left Jaffna and migrated to India.

(e)    While in India, his neighbours in Sri Lanka told him the LSA was looking for the appellant and his family. The appellant is unable to rely upon the protection of the Sri Lankan police because it is controlled by the government, which also controls the SLA.

(f)    If he returns to Sri Lanka, the appellant will be arrested ‘informally’ because there is no proper case against him. So, rather than being imprisoned, they will just take him away and kill him. The appellant is unable to relocate to another part of Sri Lanka because the SLA will find him because they have his family photo.

4    On 7 March 2017, the appellant attended an interview with the delegate and on 28 March, the delegate made the decision to refuse the application. That decision was automatically referred to the IAA. On 8 May 2017, the appellant’s representative provided written submissions in which a new claim was raised, being that there was a real risk the appellant would suffer significant harm because of his sister’s status as an asylum seeker.

Consideration by the IAA

5    In a letter dated 31 March 2017, the IAA acknowledged that the matter had been referred to it and noted that the Department had provided all the relevant documents. It was also noted that the IAA would proceed to make a decision on the basis of the information sent to it by the Department, unless it decided to consider new information. The letter stated that the IAA only considered new information in limited circumstances, which were explained in the factsheet and Practice Direction attached.

6    That Practice Direction indicated that new information, or a submission as to why the applicant disagrees with the decision of the Department or any claim or matter presented to the Department that was overlooked, must be provided within 21 days of the referral. On 14 April 2017, the appellant wrote to the IAA by email and requested a 14 day extension of the deadline by which he was to submit further documents to the IAA. He claimed that in the Protection Visa interview the interpreter did not accurately translate his statements and that led to his being refused a visa. On 18 April 2017, the IAA responded to that request saying that an extension would not be granted, but no decision would be made before 28 April 2017 and any submission received before then may be considered.

7    On 28 April 2017, the appellant’s representative sent to the IAA a request that the appellant’s SHEV application and audio recording of his interview be provided. On 1 May 2017, the IAA provided those documents to the appellant’s representative. A week later, on 8 May 2017, the IAA received a cover letter and written submissions from the appellant’s representative.

The IAA’s decision

8    At the commencement of its reasons, the IAA outlined the information which it had regarded in making its decision, including the material given to it by the Department. It also noted the IAA received a written submission on 8 May 2017, which stated that all information provided was based on material which had been before the delegate and that no “new information” within the meaning of s 473FB, was included.

9    The IAA considered the contents of the submissions for the purposes of ascertaining whether they contained “new information” within the meaning of s 473DC(1) of the Act. It classified parts of the submission as being arguments responding to issues in the delegate’s decision and, as such, not information which might be regarded as “new”. It had regard to those parts in making its decision.

10    The IAA then identified that claims not previously raised were included in the submissions. Specifically, it identified the claim that there was an ongoing investigation being conducted by the Sri Lankan authorities into the appellant and, secondly, the claim that there was a real risk that he would suffer significant harm as a result of his sister’s status as an asylum seeker. In relation to these matters the IAA said:

There was no information before the Minister that there is an ongoing investigation being conducted by the Sri Lankan authorities in relation [to] the applicant. Although there was information before the Minister that the applicant’s sister has sought asylum in Australia, the claim that the applicant feared harm because of that was not. There is no explanation in the submission as to why these claims are only being made now. I am not satisfied that the information could not have been provided before the delegate’s decision was made or that it is credible personal information that if known may have affected consideration of the applicant’s claims. Nor am I satisfied that exceptional circumstances exist to justify considering this new information.

The decision then went on to consider the substance of the matter.

11    The decision summarised the appellant’s claims and then considered whether the appellant was a refugee, in accordance with s 5H(1) of the Act. It was noted that the appellant’s claims had been presented “quite consistently at all stages” with the result that many parts of them were accepted. The IAA considered the available Country Information, including that which supported the finding that a person being of Tamil ethnicity would not, of itself, warrant international protection. It also considered Country Information relating to the return of Tamils to Sri Lanka from India. The information derived from the Department of Foreign Affairs and Trade noted that while the process of returning from Tamil Nadu to Sri Lanka can involve some administrative and lifestyle difficulties, there is no evidence to suggest that individuals would experience office or societal discrimination upon their return.

12    There were parts of the appellant’s claims that the IAA did not accept. Specifically, that he had or has now a profile that would attract the attention of the Sri Lankan authorities; that he is on a ‘stop’ list at the airport; that the authorities have a list which includes the names of the appellant and his father as people who have supported the LTTE; and, that the appellant would be imputed as holding pro-LTTE opinions on return. Because it rejected those assertions, the IAA was not satisfied that he faced a real chance of serious harm from any Sri Lankan authority. In relation to his returning to Sri Lanka, it noted that he would not be at risk of harm during or as a consequence of any routine investigations as a part of his return, such as the undergoing of identity checks. It was accepted he might be detained for a short period during an investigation to establish his identity. Such detention did not rise to the level of a threat to life or liberty, or to significant physical harassment or ill treatment, or otherwise amount to serious harm. Consequently, the IAA determined the appellant did not meet the requirements of the definition of “refugee” in s 5H(1) and was not entitled to a protection visa under s 36(2)(a) of the Act.

13    For the same reasons the IAA was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia, there was a real risk he would suffer significant harm with the result that he did not satisfy the requirements of s 36(2)(aa) of the Act.

14    The IAA affirmed the decision of the delegate not to grant the appellant a protection visa.

The decision of the FCC

15    The first part of the judgment of the Court below provided background to the appellant’s case. It was observed that there were new claims in the submissions supplied in May 2017. Those new claims were that there was an ongoing investigation into the appellant being conducted by the Sri Lankan authorities and there was a real risk he would suffer significant harm as a result of his sister’s status as an asylum seeker. The reasons also considered the IAA decision.

16    At the hearing before the FCC the appellant made a number of submissions, some of which included new facts not previously alleged. The primary judge said of those submissions that they did not ‘allege any jurisdictional or non-factual error by the IAA, and amount to no more than factual assertions … rather than a claim of any jurisdictional error’ (at [13]). The oral submissions were said to be ‘no more than a plea for impermissible merits review’ (at [13]).

17    The grounds of the judicial review propounded in the Court below were as follows:

(a)    “The Assessor failed to properly consider all of my claims”.

(b)    “The Assessor didn’t give me a chance to comment on one aspect of my claim”.

Those grounds were not particularised and the primary judge concluded that where no particulars were provided, the grounds of review conveyed no meaning (at [15]). With that in mind he considered dismissing the appeal, although out of an abundance of caution in ensuring that the appellant’s case was dealt with fairly, decided he would address the two grounds as far as he was able to do so.

18    In relation to the first ground, the primary judge’s reasons can be summarised as follows:

(a)    ‘The IAA’s consideration of the applicant’s claims and credibility shows that the IAA “engage[d] in an active intellectual process directed at that claim or criteria”’ (at [20]).

(b)    ‘no claims required to be considered by the IAA were not considered by the IAA’ (at [22]).

(c)    ‘To the extent the applicant may be arguing the IAA failed to consider the claims of an investigation into “his ongoing investigation being conducted by the Sri Lankan authorities” and “his sister’s status as an asylum seeker”’ (at [23]) the Court referred to the part of the IAA’s decision quoted at [9] above.

(d)    The relevant Explanatory Memorandum said of Pt 7AA of the Act that ‘the limited review mechanism supports the measures in the … Bill … which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront’ (at [24]).

(e)    His Honour set out ss 473DC and 473DD and referred to what was said about s 473DD in Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16. Section 473DD provides that the IAA must not consider any new information, except for in certain circumstances, specifically where there are exceptional circumstances; and the new information was not and could not have been provided to the Minister before the Minister made the decision, and it is credible personal information not previously known and had it been known, may have affected the consideration of the claim. In this case, the IAA concluded that none of those conditions were satisfied. The primary judge found that conclusion was open to the IAA for the reasons it gave (at [27]).

(f)    It followed that ‘the IAA committed no jurisdictional error in its consideration of whether to have regard to new information’ (at [29]).

19    In relation to the second ground, the primary judge’s reasons were as follows:

(a)    The IAA is to conduct a review and make a decision on the papers, without the need to provide any opportunity for the applicant to provide further information or to interview the applicant and provide an opportunity for comment: ss 473DB(1)(a)-(b), 473DC(2) (at [31]).

(b)    If the IAA does invite an applicant to provide new information, it must apply, and the information must satisfy, s 473DD of the Act (at [31]).

(c)    There was no obligation for the IAA to allow the applicant to comment on ‘one aspect of his claim’, but having invited the applicant to comment, he did so, through his legal representative, and that information to the extent it was admissible, was considered. However, where those submissions contained new information it was not considered (at [31]).

(d)    It was noted that the IAA can invite the applicant to a further hearing and can ask for information about any comment it felt the delegate may have overlooked. Here, the appellant’s representatives did not make any allegation in its written submissions that the delegate did not provide the applicant a meaningful opportunity to address any claim. It was more that the way the delegate addressed and considered those claims was said to be unreasonable (at [32]).

(e)    For those reasons, the primary judge concluded that the second ground of review did not support the existence of jurisdictional error in the IAA decision (at [33]).

The Appeal

20    The only ground of appeal in the Notice of Appeal as originally filed was:

I was unrepresented in the FCC. I intend to seek legal representation and appeal the decision made by the FCC as I believe the decision made by the review authority is affected with legal error. Particulars will be provided once I engage legal representation.

21    However, in the appellant’s written submissions Mr Godwin of Counsel initially sought to rely upon an Amended Notice of Appeal, which contained the following ground:

His Honour erred in finding that the IAA committed no jurisdictional error in its consideration of whether to have regard to new information.

Particulars

The Judge should have found that the Authority erred in treating as new information the submission that an integer of the applicant’s anti government profile was the fact that his sister had made an asylum claim.

22    The thrust of appeal so formulated was that the Court below failed to detect the error by the IAA treating as “new information” the claim that the appellant would be perceived differently by Sri Lankan authorities because of his sister’s status as an asylum seeker. In this respect it would appear that the basis of the appeal now advanced is that the IAA failed to appreciate that the appellant had a fear of harm arising from the fact that his sister was a failed asylum seeker. That fear was said to arise either directly because his sister’s status rendered him a target of the SLA or, indirectly, because her status re-enforces the perception that he has an anti-government profile.

23    When the matter was called on for hearing Mr Godwin sought to rely upon a Further Amended Notice of Appeal which contained a further ground being:

2    The Judge erred in finding the Authority had addressed all of the applicant’s claims and particulars

Particulars

a    the Authority failed to address the applicant’s claims based upon being a failed asylum seeker who sought asylum in Australia having spent time with the Tamil Diaspora in Australia

24    Mr Godwin explained that the appellant asserted that the Authority did not consider that the appellant would fear harm by reason of an imputed political opinion arising from him having sought asylum in Australia and having spent time with the Tamil Diaspora in Australia.

25    As Counsel for the Minister submitted, the grounds now sought to be advanced were not agitated before the primary judge with the consequence that leave is required for them to be argued. The principles to be applied in determining whether to grant leave were identified by the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 at [46]-[48]:

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 & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[24] and [38].

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.

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.

26    As Counsel for the Minister also submitted, the mere fact that the Minister will not suffer any prejudice is not, of itself, sufficient to allow the new ground to be raised: SZKMS v Minister for Immigration and Border Protection [2008] FCA 499 at [20].

27    In this matter no explanation has been provided as to why the new grounds were not advanced before the primary judge although it is recognised that the appellant was self-represented in that forum. That being so, the reason as to why the point was not taken is self-explanatory. It follows that it is appropriate to consider whether the grounds now sought to be advanced have any merit which might warrant their consideration.

New information or further submissions

28    In support of the appellant’s first new ground Mr Godwin of Counsel, submitted that there is a distinction between new factual information and new submissions based upon existing facts. He submitted that, here, all that was done was the provision of additional submissions and no new facts or information was provided. He relied upon the decision in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 where it was said:

[50] It is concluded that a ‘submission’ which only addresses the information already made available for consideration by the Authority and which contains no additional factual information is neither:

1.    A ‘document’; nor

2.    ‘information’

for the purposes of the definition of ‘new information’ as set forth in s 473DC.

…

[54]  The expression “new information” as defined in s 473DC(1), it is concluded, seeks to identify the sources whereby new factual material is sought to be placed before the Authority. To expose the Authority to the prospect of receiving an ever‐changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision‐making. But there remains no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority - and to have the Authority in fact consider - a submission directed to an established pool of factual information.

He also relied on the following passage in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16:

[24] The term ‘new information’ must be read consistently when used in ss 473DC, 473DD and 473DE as limited to ‘information’ (which may or not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).

29    The Court’s attention was also drawn to the Full Court decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE (No 2)) and, in particular, that part of the judgment which considered the obligation of a decision maker to make a finding on a “substantial, clearly articulated argument relying upon established facts”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 [24] (Dranichnikov) per Gummow and Callinan JJ, Hayne J agreeing [95]. In reliance on the reasons of Gummow and Callinan JJ in that case, their Honours in NABE (No 2) observed:

[56] The observations cited reflect the general principle that the first task of the Tribunal is to determine whether the applicant’s claims are claims of a well-founded fear of persecution for one of the reasons set out in Art 1A(2) of the Refugees Convention. Those are questions of characterisation which involve in part questions of law. The factual questions that follow are, as in Dranichnikov, whether the applicant has a fear of persecution, whether it is well founded and if so whether the apprehended persecution is for a Convention reason. Those logical steps emerge as necessary elements of the Tribunal’s review function by reference to the nature of the decision it is called on to review. The way in which it discharges that function flows from the powers and procedures prescribed for the Tribunal in the conduct of reviews and the use of the word “review”.

30    That paragraph rightly emphasises the elemental consideration required by the decision maker which includes the factual elements of the existence of fear of persecution from some source for one of the reasons in the Convention.

31    The Court in NABE (No 2) then identified the obligation of the decision maker to consider claims which were not expressly articulated to it:

[58]  The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it - Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated - Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 - 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant - Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it - SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

32    Later their Honours agreed with the comments of Selway J in GBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 where he accepted that it was not obligatory on an applicant to attach the correct Convention label to describe his or her plight and then added:

His Honour, in our view, correctly stated the position when he said (at [18]):

[18] The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

This does not mean that the tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

33    In reliance on the above, Mr Godwin further submitted that the obligation of the IAA was to consider any claim which clearly arises from the material before it which, if accepted, would give rise to fear of persecution. So the submissions went, if the applicant for a visa asserted a fear of persecution in their country of origin for any particular reason, the decision maker was required to consider a claim for protection based upon any other fact in the material regardless of whether the applicant asserted a fear of harm because of it.

34    With respect that submission cannot be accepted and it is an extension of the principle in Dranichnikov well beyond its intended limits.

35    The discussion in NABE (No 2) makes it clear that a claim for protection needs to be “raised” before the decision maker in order for it to be considered. The claim may be raised expressly by being articulated in one form or another. Where that is done the decision maker must turn its mind to whether the material which is available establishes the integers of the claim.

36    However, where the claim is unarticulated, the obligation of the decision maker is more obscure. As the authorities say, the implicit case must be one which “arises clearly” or “squarely” from the material. However, there is very little guidance as to how the claim is to be detected. Whilst it is said that it does not depend “for its exposure on constructive or creative activity” by the decision maker, nothing is identified as to the lengths to which the decision maker must go to detect the existence of a claim. It is apparent that in this exercise the authorities require the decision maker to “connect the dots” of a potential claim to some extent but they do not explain how many dots need to exist before the task needs to be attempted.

37    It must be kept in mind, as Gleeson CJ observed in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 [1], the claim advanced must be one which was made before the decision maker:

… Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.

38    Relevantly for the present case, if it is apparent that on the evidence, material or established facts before the decision maker that there is an absence of an essential element to a successful claim, can it be said that the claim “arises” such that the obligation arises to consider the claim. In order to “consider” the claim the decision maker would be required to set out in its reasons the evidence relating to the claim, assess that evidence and form a conclusion as to whether it can be sustained. Necessarily, that cannot be the obligation of the decision maker where it is clear that an essential element of a claim is missing. In order for a claim to be said to “arise”, there needs to be some evidence or material suggestive of the existence of each element of the claim to be considered. Absent that, the decision maker cannot be expected to undertake an exploration and assaying of the material before it to ascertain whether an unarticulated claim exists.

39    In order for an entitlement to protection to arise under the Convention the claimant needs to have, inter alia, a “well-founded fear of persecution”: s 36(2)(a) and s 5H of the Act. Under the Complementary Protection provisions there must be a real risk that the applicant will suffer significant harm: s 36(2)(aa) of the Act. The fear of persecution or the risk of harm are essential factual elements of these claims as explained in Dranichnikov and NABE (No 2) and, if they do not arise on the material before the decision maker, a relevant claim based on them does not arise for consideration.

Application to the first proposed new ground

40    Here the appellant did not suggest to the delegate he had any fear of persecution because his sister was an asylum seeker and nor did he suggest that siblings of asylum seekers faced a real risk of harm if they were returned to Sri Lanka. It was not suggested that in any of the Country Information before the delegate there was any indication of persons being harmed or fearing harm because of those factors. That being so it is not possible for any Convention claim based upon either of them to arise on the material before the delegate in this case. Similarly, there was no material which suggested that the siblings of asylum seekers became subject to the risk of harm from the authorities. In order for a claim to be considered under the Complementary Protection provisions, there would need to be some evidence that some harm might be sustained by a person because a close family member had sought asylum. It was not suggested that there was any such material before the IAA.

The new information

41    The appellant sought to overcome the deficiency in the evidence before the IAA by referring to a statement to the effect he feared persecution as a result of his sister being an asylum seeker which appeared in the submissions made to the IAA by his advisor. At paragraph 11 of the advisor’s submissions to the IAA it is said, inter alia, that the appellant will face a real chance of persecution or a real risk of significant harm “for reasons of … his actual/imputed anti-government opinions (as a result of … his sister’s status as an asylum seeker …)”.

42    In the documents provided by the advisor to the IAA the advisor said that he was only making “submissions” and he expressly disavowed that “new information” was being provided. However, regardless of that assertion, to the extent to which the appellant wishes to rely upon the advisor’s “evidence” that he had a fear or risk of persecution or harm because his sister had applied for asylum, the statement made by the advisor was “information”. It was a statement of fact and not merely a submission on the material which had been before the delegate. In this way, the advisor’s statement that the appellant had a fear of persecution or there was a risk of harm because his sister was an asylum seeker was, unquestionably, new information. Importantly, it was not new information which the IAA was invited to consider and no reasons were advanced as to how it could possibly have met the criteria of s 473DD of the Act.

43    Given the above, there is no need to consider in this case whether new arguments or new claims based solely on the material which was before the delegate can be agitated before the IAA: see CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434 and Minister for Immigration and Border Protection v CLV16.

44    To the extent to which the appeal is framed on the above submission, it cannot succeed.

An integer of a wider claim

45    Mr Godwin, for the appellant, submitted that the fact of the appellant’s sister being an asylum seeker was an integer of a wider claim that the appellant feared harm because of his actual or imputed anti-government opinion. He submitted the appellant’s actual or imputed opinion arose from:

(a)    his status as a failed asylum seeker;

(b)    his sister’s status as a failed asylum seeker;

(c)    his time spent in India and Australia as part of the Tamil diaspora; and

(d)    his having sought to seek asylum in Australia.

46    The difference between the first and the fourth elements is not readily apparent. In any event, so the submission went, the advisor stated to the IAA that the appellant’s claim concerned an imputed anti-government opinion based on the identified sources and that clearly arose from the material before the delegate.

47    It should be noted that there is nothing in the appellant’s statement in support of his application for a SHEV which suggested he might have been perceived as having anti-government attitudes because his sister had applied for asylum. Indeed, the fact of her having made that application was not mentioned at all. In the delegate’s decision on the SHEV application, the appellant’s circumstance as a failed Tamil asylum seeker was considered and it was determined that he was not at risk of persecution or harm as a result.

48    The first time that information concerning the appellant’s sister’s application became relevant was when it was put to the appellant in his SHEV interview that some of the events related in his sister’s application were different to those advanced by him. This was recorded in the delegate’s reasons for decision as was the fact that the appellant sought to justify the differing versions of events. It is not suggested that the appellant sought to rely upon his sister’s application as in any way affecting or supporting his claims as they were made to the delegate.

49    The appellant first relied upon the fact of his sister having made a claim for asylum in his advisor’s submissions to the IAA when he claimed that her conduct gave rise to his real or imputed anti-government opinion which created in him a fear of persecution. Whilst it was submitted that this claim arose on the material before the delegate, that should not be accepted. The submission made to the IAA that the appellant fears persecution or is at risk of harm due to his actual or imputed anti-government opinions which arise from, inter alia, his sister having sought asylum, contains assertions of fact. In particular, that his profile as having anti-government opinions arose or were imputed because his sister had applied for asylum. The assertion of that causal connection was not information which was before the delegate and, before the IAA would have constituted “new” information. Similarly, his claimed fear of persecution because of his anti-government opinions (founded partly on his sister having sought asylum) was, as identified above, not information previously provided. That was a new submission based on the newly asserted facts that he had the fear alleged, that he had the actual or imputed political opinion and, the imputed opinion arose because of his sister’s asylum seeker application.

50    It follows that the information implicit in the appellant’s submissions to the IAA concerning the impact of his sister’s application for asylum was “new information” which the IAA correctly rejected. No error exists in the conclusion of the primary judge that the IAA did not commit jurisdictional error by refusing to consider the claimed effect of the sister’s application on the appellant’s claims.

The second proposed new ground of appeal

51    To some extent, similar difficulties to the above arise when the second new ground of appeal is considered. However, a more fundamental problem for the appellant is that the Authority did consider whether he would be harmed or have a fear of harm because he had sought asylum in, inter alia, Australia or because he spent time with or was part of the Tamil diaspora.

52    Immediately prior to paragraph 10 of the Authority’s decision is the heading “Young Tamil make from a former LTTE controlled area/imputed support for the LTTE/father’s imputed support for the LTTE/lived for an extended period of time outside of Sri Lanka”. After a detailed consideration of the material relevant to this topic the Authority found that whilst the Country Information indicated that the authorities may monitor any member of the Tamil diaspora returning to Sri Lanka, it was not satisfied that the appellant had a profile which would attract their attention.

53    Subsequently in its reasons under the heading “Returning asylum seeker” the Authority considered the position of returning Tamil asylum seekers and held:

I am not satisfied that the applicant’s activities in India would raise a concern or would give him a profile as a pro-LTTE activist, a supporter of the LTTE diaspora or an activist for Tamil rights or separatism that would cause him to be of adverse interest to the Sri Lankan authorities on return. … Given that I have found that the applicant has no relevant profile of actual or suspected links to the LTTE or any record of pro-LTTE political activity, or for any other reason, I am satisfied that he will not be at risk of harm during, or as a consequence of this routine investigation.

54    The Authority accepted that the appellant would be detained on his return to establish his identity but that he would not be exposed to any danger within the meaning of the Convention as a result. It concluded that the Country Information showed that the risk of mistreatment for returning Tamil asylum seekers to be low. Although there were reports of returning Tamils being tortured and detained for long periods, this was on the basis that the returnee had a LTTE profile with actual or imputed links to the LTTE. The mere fact that the returnee was a Tamil or a Tamil from the north of the country or was an asylum seeker was not sufficient to give rise to a real chance or risk of harm on return. Consequently, the Authority held that the appellant, with his history, did not face a real chance of harm on his return.

55    It is apparent the Authority took into account the appellant’s characteristic as a returning Tamil asylum seeker and the fact that he mixed with the Tamil diaspora in India when determining whether he faced any risk of harm were he to return to Sri Lanka. It did not fail to address any claim or integer of claim made by the appellant to the Authority on any of the above grounds. This second proposed ground would also fail.

Conclusion

56    It follows that there is insufficient merit in the proposed new grounds of appeal to warrant granting leave to amend the Notice of Appeal. The application to do that is refused. The appeal must be dismissed and the appellant is to pay the first respondent’s costs of the appeal.

Associate:

Dated:    21 November 2018