FEDERAL COURT OF AUSTRALIA

DNQ17 v Minister for Immigration and Border Protection [2018] FCA 1781

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 the Federal Circuit Court of Australia (FCC) of 7 December 2017 which dismissed an application for review of a decision of the Immigration Assessment Authority (IAA) which had affirmed the decision of a delegate of the Minister to refuse the appellant a protection visa.

2    The appellant is a citizen of Sri Lanka who arrived in the Cocos Islands as an illegal maritime arrival on 4 November 2012. He lodged an application for a Safe Haven Enterprise Visa (Subclass 790) (SHEV) on 30 December 2016 founded upon his claim that he feared persecution in Sri Lanka because of his Tamil ethnicity and imputed affiliation with the Liberation Tigers of Tamil Eelam (LTTE).

3    On 29 May 2017, the application was refused by a delegate of the Minister. The matter was immediately referred to the IAA which subsequently affirmed the delegate’s decision. The appellant sought judicial review of the IAA’s decision from the FCC which dismissed the application on 7 December 2017.

4    The original Notice of Appeal to this Court specified a number of grounds although their exact nature were somewhat opaque. There is, however, no need to consider them in detail. The appellant has been assisted in this matter by Mr Moutasallem of Counsel who has undertaken to appear pro bono publico. Mr Moutasallem provided a written outline of argument on behalf of the appellant in which he postulated new grounds of appeal in substitution for those in the original Notice of Appeal. They will be identified below.

Background

5    The parties agree that the background facts to this matter are accurately set out in paragraphs [4] to [6] of the Reasons of the FCC. That being so they are replicated as follows:

4.    The applicant is a Tamil born in the Northern Province of Sri Lanka. In his written submissions, the Minister summarised the applicant’s claims in the following terms, which I adopt:

6 (a)    when he was young his father was shot and killed by Sri Lankan armed forces on suspicion of having LTTE links;

(b)    in May 2005 the applicant’s older brother did not come home one day. His mother learned that he had joined the LTTE, and she informed the village officer and the police. His mother travelled into LTTE-controlled territory in search of the applicant’s brother and saw him once or twice. On her return to government-controlled territory army soldiers spoke to her and made reference to looking for her son;

(c)    around 2007 or 2008 the applicant’s brother visited the family in Batticaloa, in possession of his gun, his LTTE identity card and a cyanide capsule. The applicant’s mother was concerned for the family’s safety and the family went to an aunt’s home in Batticaloa that evening;

(d)    four men visited the aunt’s house that night and spoke to the applicant’s grandmother at the door. They identified themselves as being from the LTTE and said they knew the applicant’s brother was there, or would visit. The men threatened to harm the applicant’s brother or family members if he did not return to the LTTE. The applicant’s brother left the next morning and has not been seen since. The applicant stated at the SHEV interview that the four men may have been from the Karuna group (the LTTE’s rivals) and may have been trying to trick the applicant’s brother into returning to the LTTE so that they could capture him;

(e)    the applicant’s mother made further attempts to locate the applicant’s brother and lodged a tracing request with the International Committee of the Red Cross (ICRC) on 12 May 2008;

(f)    the applicant’s mother contacted the LTTE and was advised that the applicant’s brother had been killed in battle;

(g)    in about 2009, six armed officers from the Criminal Investigation Department (CID) came to the family home and searched for weapons. The CID asked about the applicant’s brother and his mother informed them of his death. The CID told the applicant’s mother and aunt to report to the CID office in Colombo the next day. They did so, and the applicant’s mother was interrogated. The CID may have followed up this interrogation with phone calls to the applicant’s mother;

(h)    in August or September 2012, four CID officers came to the family home and asked about weapons. They took the applicant to Colombo where he was interviewed by senior CID officers, assaulted and threatened. The applicant was held overnight and left at the Batticaloa police station the next day. The applicant believes his mother contacted a human rights agency to complain about him being taken, and that because he was a student in school uniform he was released. The applicant’s mother came to the police station and signed for him. The police warned her that the CID was likely to harass the applicant again;

(i)    the applicant then went to stay at a friend’s home. A few days after his release, two policemen came to his mother’s house asking about his whereabouts. His mother told them the applicant was away for work. The police told her that the applicant had been required to report to them after his release and he should come to the police station or they would take another family member;

(j)    his mother, fearing for the safety of the applicant and his younger brother, arranged for both to travel to Australia;

(k)     after the applicant’s arrival in Australia he spoke to his mother who advised that the police had come looking for the applicant and his brother. His mother advised that his third surviving brother had gone to Malaysia to avoid harm;

(l)    the police have returned to question the applicant’s mother about the applicant and his brothers and threatened their safety if they return to Sri Lanka.

(References omitted)

5.    The applicant claimed that he feared harm on return to Sri Lanka and would not be able to obtain protection. As summarised by the IAA, he claimed to fear being arrested at the airport upon return to Sri Lanka and detained for investigation or charged on the basis of:

  a)    his illegal departure from Sri Lanka;

  b)    his failure to report to the police after his release in 2012;

  c)    being a supporter of the LTTE;

  d)    possession of LTTE weapons brought to his house by his brother;

e)    intelligence offences against the government by informing the Australian government about human rights abuses by Sri Lankan authorities;

  f)    being involved in anti-government activities in Australia.

6.    The applicant further alleged that in February 2014 the Department had released his personal details in a data breach and he feared that the Sri Lankan authorities would aware that he claimed asylum in Australia.

The decision of the IAA and its reasons

6    As mentioned, the IAA affirmed the decision of the delegate to refuse the grant of a SHEV. It did so because it was not satisfied the appellant was a person to whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). Whilst it accepted some of the appellant’s claims concerning his past life in Sri Lanka, it did not accept as being genuine his assertions that he was of interest to any paramilitary group in Sri Lanka or, by reason of that, to the authorities in Sri Lanka. It was acknowledged that the appellant’s brother previously had an association with the LTTE, however, given the substantial number of years which had lapsed since then, it was not accepted that the appellant would be regarded as being in some way involved with that organisation. The consequence was the IAA was not satisfied there was a real chance of the appellant being persecuted in Sri Lanka in the reasonably foreseeable future. It did not accept that he would be imputed as a supporter of the LTTE for any reason. Whilst it did accept he might be detained as an illegal departee on his return to Sri Lanka, it held that did not amount to a real risk of relevant harm (for the purposes of ss 36(2)(a) or 36(2)(aa)).

Leave to amend

7    The delivery of submissions on behalf of the appellant should be taken as the making of an application for leave to amend the Notice of Appeal by adding new grounds which were not agitated before the FCC.

8    The principles on which to determine whether leave should be granted to raise new grounds on appeal were identified in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588, 598–599 at [46]–[48] where the Full Court said:

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.

9    In this case there is no explanation for the omission to argue these grounds before the FCC. It is to be observed that the appellant was legally represented in that forum and, in such circumstances, it is usually necessary for some explanation to be provided. However, the appellant is now represented by Counsel who has obviously turned his mind to the matter and identified the most important and relevant arguments which might be advanced on the appellant’s behalf. There is also some argument to the effect that the proposed new grounds emerged out of the broad grounds advanced to the FCC. In accordance with the above principles it falls to determine whether there is any merit in the proposed grounds.

The first proposed ground of appeal

10    The first proposed ground of appeal is as follows:

1.    That the primary judge erred in failing to find that the reasons of the IAA were inadequate and therefore gave rise to a jurisdictional error.

Particulars

  a.    The appellant claimed that he feared harm in Sri Lanka;

b.    One of the integers of his claim was that he was involved in anti­government activities in Australia;

c.    The IAA’s reasons for not accepting the above integer for the claim is inadequate which demonstrates an inadequate consideration of the claim made by the appellant.

11    The appellant submitted that in his statement of 22 December 2016 he claimed, amongst other things, that he feared being arrested and detained if returned to Sri Lanka because of “involvement in anti-government activities in Australia against the Sri Lankan government”. He further submitted that the IAA failed to provide adequate reasons as to why it had not accepted that claim. It was also submitted the IAA had rejected his claim that he would be mistreated on return to Sri Lanka because of his political activities in Australia.

12    There is some force in the appellant’s contention that the IAA did not expose any reasons as to why it found that the appellant had not engaged in political activities against the Sri Lankan authorities whilst in Australia. However, the appellant’s claim to the delegate and to the IAA did not specifically assert he had been involved in such activities. He did not make any such assertion in his statement of 22 December 2016, or in his interview with the delegate on 10 May 2017, or in the submissions to the Department, via his migration agent, on 12 May 2017. His claim in this respect was more nuanced. It was to the effect that he feared being arrested and detained for investigation or charged for, inter alia, involvement in anti-government activities in Australia against the Sri Lankan government. Thus, his claim was not that he had engaged in those activities but that he would be arrested and investigated for such activities. The effect of his statement on the form recording his Entry Interview was that he was harassed by the police because his brother was suspected of being involved in the LTTE. The IAA correctly made no finding in relation to any political activities by the appellant in Australia for the very good reason that there was no evidence of the same.

13    As the written submissions on behalf of the Minister identified, the IAA dealt with the argument that the appellant would be suspected of being involved in anti-government activities in Australia. It did not accept that would be the case because it would require the appellant to have had a profile within the Sri Lankan authorities which suggested that he might be engaged in those activities and no such profile existed. The IAA was also not satisfied that the appellant had an adverse profile within the Sri Lankan authority due to any actual or imputed profile of LTTE links by reason of him being a failed asylum seeker, his protection claims allegedly being released as a consequence of a data breach or his Tamil ethnicity.

14    It follows that the IAA dealt appropriately with the issues raised by the appellant as to his fear of being arrested. It found that no such fears were reasonably held. Whilst it did not deal with any fears based on the appellant’s political activities in Australia, that was because there was no suggestion or evidence that the appellant engaged in any such activities. There is insufficient merit in this ground to warrant the granting of leave to appeal in respect of it.

15    Relevantly, this ground was not pressed by Counsel on the appellant’s behalf and it has been dealt with only because it was the subject of written submissions filed by each party.

The second proposed ground

16    The second proposed ground of appeal is as follows:

2.    That the primary judge erred in failing to find that the IAA’s reasons in concluding that the applicant would be treated leniently were inadequate in that the IAA failed to have regard to evidence and submissions made on behalf of the appellant.

    Particulars

a.    On 12 May 2017 the appellant’s then representative referred the delegate Minister to a UN Special Rapporteur which concluded that the conditions in prisons in Sri Lanka amount to cruel, inhuman or degrading treatment owing to severe overcrowding, insufficient ventilation, excessive heat and humidity, and the denial of adequate access to health care, education, vocational training and recreational activities (CB P126);

b.    The IAA failed to have regard to the evidence and submission made in that regard by the appellant.

17    The assertion raised by this ground was to the effect that the primary judge erred in failing to identify the IAA had failed to have regard to the evidence and submissions made on behalf of the appellant that a report of the UN Special Rapporteur disclosed that the appellant was at risk of harm if detained in Sri Lanka. The submissions provided to the delegate had indicated that the UN Special Rapporteur had identified:

Conditions of detention amount to cruel, inhuman or degrading treatment owing to severe overcrowding, insufficient ventilation, excessive heat and humidity, and the denial of adequate access to health care, education, vocational training and recreational activities.

18    The delegate apparently obtained a copy of the Special Rapporteur’s report and considered it in detail. In his decision he referred to relevant parts of that report which indicated the poor conditions in the Sri Lankan prisons, including the insufficient ventilation, excessive heat, humidity and overpopulation, constituted a form of cruel, inhuman and degrading treatment. However, the delegate considered that the detention of the appellant in such conditions for only a few days would not constitute a significant form of harm. It considered that although being held in the conditions identified for an extended period might be cruel or degrading treatment, the same effect does not arise from such treatment over a few days.

19    The appellant submitted that the information from the UN Rapporteur was referred to in support of the submission that he would be at risk of being detained which, in turn, led to a risk of cruel, inhuman or degrading treatment. The appellant further submitted that, whilst the IAA accepted the poor conditions in Sri Lankan prisons, it was not prepared to accept that there was a risk of cruel or inhuman treatment or punishment. It was also submitted that at no point in the IAA’s reasons was there a reference to the evidence from the UN Special Rapporteur such that the IAA ignored relevant material.

20    Whilst there is some substance in this argument, a fair reading of the IAA’s substantial reasons indicates that it took the relevant information into account and correctly considered that the appellant would not be at risk of harm were he detained.

21    The Minister submitted the reasons of the IAA revealed that it took into account or had regard to the material referred to it by the Secretary under s 473CB of the Act, as it was required to do. Necessarily, that material would have included the delegate’s decision which considered and referred to the Rapporteur’s report. As the Minister submitted, the IAA took into account the delegate’s decision. That submission should be accepted. The IAA’s reasons show that it was acutely aware of the poor conditions in Sri Lankan prisons and the reasons for that which appear to be consistent with the issues described in the Rapporteur’s report. It was also aware of and considered the argument that detention in those conditions might be said to constitute cruel and inhuman treatment or degrading treatment. Like the delegate the IAA concluded that a brief detention in such conditions did not amount to significant harm. In other words, it turned its mind to the exact issue which was the subject of that report and considered its relevance to the circumstance before it. The IAA was not required to refer to every piece of evidence before it and every contention advanced by the applicant: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] – [47] per French, Sackville and Hely JJ.

22    Further, the information from the UN Special Rapporteur was provided in relation to the appellant’s claim that he would be detained under the Sri Lankan Immigration and Emigrants Act which provided for a term of imprisonment of between one and five years for persons departing Sri Lanka unlawfully. However, the IAA’s reasons referred to Country Information which indicated that, in practice, the penalties under that Act are discretionary and offences are almost always punished by the imposition of a fine. It concluded that the appellant might be detained and questioned at the airport for up to 24 hours, be fined for breaching the Act and may face a period of time held in prison. In this respect the Minister submitted that the IAA’s reasons reflect that any period of detention will be minimal and temporary until the appellant can be brought before a magistrate.

23    The integer of the appellant’s claim was dealt with by the IAA in paragraphs 51 to 54 of its reasons and its conclusions were logical and rational on the information before it. Its reasons reveal that it was cognisant of the poor prison conditions in Sri Lanka due to overcrowding, poor sanitation and lack of resources but it was also cognisant that the appellant would spend very little time in prison. It was entitled to give the information as to the poor conditions in prisons the weight that was appropriate: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]. That said, here it appears the IAA accepted the accuracy of the information which appeared in both the DFAT Report and in the Rapporteur’s information concerning the conditions in Sri Lankan prisons. However, that had relatively little weight given that the conditions would only be briefly endured by the appellant.

24    Although the IAA did not specifically identify the Rapporteur’s information in its reasons, it was not required to refer in its reasons to every piece of evidence referred to by the appellant. It is not to be forgotten that the obligation of the IAA is to review the decision of the delegate and in doing so, take into account the applicant’s claims and contentions. Here, the relevant contention was that the appellant’s incarceration would constitute cruel or inhumane or unusual punishment. That was considered by the IAA and it concluded that:

I am not satisfied that there is a real risk that the applicant will face torture, cruel or inhumane treatment or punishment, or degrading treatment or punishment, including as a result of conditions he may face during a short period in custody.

25    The IAA clearly grappled with the submissions or claim made by the appellant, but found against him. The import and thrust of the concern as to the poor prison conditions in Sri Lanka to which the appellant might be exposed was considered by the IAA.

26    It follows that there is insufficient merit in this ground to warrant the granting of leave to appeal in relation to it.

Third proposed ground of appeal

27    The third proposed ground of appeal sought to be raised by the appellant was:

3.     That the primary judge erred in failing to find that the decision of the IAA was not unreasonable by reason of its inconsistency with an earlier decision to grant the appellant's brother a protection visa on grounds that were ‘not dissimilar’ to that of the appellant.

28    The effect of this ground is that the IAA’s decision was unreasonable because it was inconsistent with the decision to grant the appellant’s brother a protection visa. It is said that the delegate had conceded the claim brought by the appellant’s brother was not dissimilar to that of the appellant’s, but then appeared to decide that if a visa had been granted to him it was done in error. The appellant submitted this gives rise to the existence of two inconsistent administrative decisions resulting in opposite outcomes.

29    In his submissions the appellant acknowledged that, in order to succeed upon a ground of “inconsistency” in administrative decision making, it was necessary that there be “a similarity, if not a virtual duplication of circumstances and conditions to establish the basis for a complaint of inconsistency”: Dilatte v MacTiernan [2002] WASCA 100 at [66]. He also submitted there was an overriding principle that it is desirable there be consistency in administrative decision making: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 70. However, mere inconsistency has never been regarded as a ground of ultra vires. Something more needs to be shown which would take the decision into the realms of unreasonableness involving arbitrariness or capriciousness. Here the appellant submitted that it is unreasonable for him to be denied a visa when his brother has been granted one. This, he says, has generated unjustified and unequal treatment and inconsistency.

30    The essential difficulty for the appellant in relation to this ground is the absence of any evidence that the grounds and information on which a visa was granted to his brother are relevantly identical to the grounds and information on which he has sought his visa. Where the relevant similarities in the two applications do not exist there is no warrant for even embarking upon a consideration of an earlier decision as some form of foundation for a subsequent one. As Flick J stated in SZMIP v Minister for Immigration and Citizenship [2009] FCA 217:

“Consistency” is thus not an end in itself - a like result reached upon the basis of factually diverse materials may be the hallmark of injustice and not justice. The task of the administrator is to resolve a case upon the materials presently available and in accordance with law.

31    In the absence of evidence of a “virtual duplication of circumstances and conditions”: Dilatte v MacTiernan at [62]: the evidence of an earlier decision is irrelevant: NARY v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1255.

32    Here, there was insufficient material before the FCC to warrant a conclusion that, due to the similarity between the appellant’s brother’s visa decision and his, the refusal to grant the appellant a visa involves unreasonableness or bias. The absence of material going to the circumstances and conditions of the appellant’s brother’s case is an unsurmountable hurdle. As the Minister submitted the brother’s visa was granted at an earlier point in time to the decision to refuse the appellant a visa. The latter was made by reference to country conditions and independent Country Information, government policy and the issues relevant at the time he advanced his claim.

33    It is also pertinent that the IAA took into account the submission that the granting of a visa to the appellant’s brother could be relevant to the assessment of the appellant’s case. However, it is not alleged that the appellant or his representatives submitted that either the delegate or the IAA ought to have had regard to the particular evidence or circumstances of the brother’s case. It is not apparent that either the delegate or the IAA were aware of such evidence and circumstances.

34    As the Minister correctly submitted, the appellant did not provide the delegate with the material on which the brother’s claims were founded. He could have done so but opted not to do so. That being so the information did not come before the IAA. It was not in a position to know whether the information on which the first decision was made was identical or similar to that on which the appellant’s was made.

35    The IAA was acutely aware of the existence of the decision to grant a visa to the appellant’s brother. It noted the delegate gave consideration to the earlier decision and that the appellant’s representatives made comments regarding the decision. However, it is apparent the IAA gave it little or no weight because it was obliged to assess whether the appellant met the requirements of the criterion for a protection visa.

36    Given the lack of evidence of any stark similarity between the evidence supporting the two applications, the IAA was required to give the earlier decision little weight. There was no error in not considering it further.

37    The appellant sought to raise a new ground during the hearing of the appeal although its terms remained unspecified. Its effect was that the decision of the IAA was infected with jurisdictional error because the Secretary had failed to give the IAA a copy of the decision granting the appellant’s brother a visa as part of the review material under s 473CB(1)(c).

38    There is, necessarily, a significant difficulty with this submission and that is that its raises a question of fact as to what material was before the delegate and why the Secretary did not refer a copy of the decision. It may well be that the decision was based on considerations which were different to those in the present case and, if they were the circumstances, the Secretary may have correctly concluded that the decision was not relevant.

39    Given that the issue sought to be raised could have been met with evidence in the Court below it is most inappropriate for it to be raised on appeal. Moreover, it may well be that the appellant is not able to make good the factual substratum of the proposed new ground. Presently, he is simply speculating that there may be some evidence which may support this ground. That is another reason why the applications to raise this new ground should be refused.

40    The appellant sought to overcome the above by requesting an adjournment so that he might obtain information from the Department as to how the Secretary decided the content of the review material given to the IAA. That request should be refused. No explanation was given as to why this new ground was not investigated earlier. The appeal has been set down for some time and the appellant has been given more than sufficient time to prepare his appeal. Indeed, the hearing of this appeal was previously adjourned for three months because the appellant was not ready to proceed. The purpose of the adjournment is to obtain material which might exist, not material which is known to exist. For these reasons it is inappropriate to further adjourn this matter. The application for an adjournment should be refused.

41    It follows that there is no merit in the proposed third ground of appeal which would warrant the granting of leave to amend the Notice of Appeal. It is apparent that the factual substratum necessary to make the submission is not available. Whether any such evidence could be obtained on which the submission might be made is entirely speculative.

42    To the extent to which the submission in this respect advanced on behalf of the appellant is suggestive of bias, that submission must be rejected. It is not apparent that any such submission was being advanced. Indeed, were such an allegation of bad faith to be advanced, it would have to be clearly alleged and proved: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. In this case the careful consideration of the facts and circumstances of the appellant’s arguments and, indeed, the acceptance of a number of underlying facts by the IAA, indicates that no such bias existed.

Conclusion

43    The result of the above is that the application for leave to appeal should be refused. The appeal must be dismissed and the appellant is to pay the first respondent’s costs of the appeal.

Acknowledgement of Counsel

44    The Court acknowledges the assistance provided in this matter by Mr Moutasallem of Counsel who appeared pro bono for the appellant. The benefit which the Court derives from legal practitioners who are prepared to donate their valuable time for the advancement of the interests of those who cannot afford representation is enormous and their contribution to the Rule of Law and the efficient operation of the Court should never be underestimated.

Associate:

Dated:    21 November 2018