FEDERAL COURT OF AUSTRALIA

CFX17 v Minister for Immigration and Border Protection [2018] FCA 1843

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

Revised from the transcript

LEE J:

1    This is an appeal from a decision of the Federal Circuit Court, delivered in February 2018, at which time that court dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (IAA), made the previous May. The IAA had affirmed a decision of a delegate (delegate) of the first respondent, the Minister for Immigration and Border Protection (Minister), in October 2016 to decline to grant to the appellant a Safe Haven Enterprise (Subclass 790) visa (visa). The appellant is a Sri Lankan citizen who arrived in Australia in 2012, lodging the application which was the subject of the adverse decision of the delegate in April 2016.

2    The appellant claimed to fear harm in Sri Lanka from the Sri Lankan Army (army) and associated Tamil paramilitary groups due to imputed connections with the Liberation Tigers of Tamil Eelam (LTTE). Additionally, the appellant claimed to fear harm having, in 2012, departed Sri Lanka illegally. It is unnecessary to set out the specifics of the claims, which are referred to comprehensively at paragraph [12] of the decision of the IAA (IAA decision). The reasoning process of the IAA as revealed in the IAA decision was, in turn, summarised comprehensively by the primary judge at paragraphs [11] to [35] of his Honour’s reasons.

3    Of present relevance is that the IAA observed that it had received submissions from the appellant, dated 14 November 2016, attaching three news articles and four letters which were not before the delegate. The IAA declined to take this information into account pursuant to s 473DD of the Migration Act 1958 (Cth) (Act), as it was not satisfied that exceptional circumstances existed to justify considering this new information given:

(a)    the first and second articles predated the delegate’s decision, and no explanation was offered as to why the information was not provided to the delegate, and the third article related to an event which occurred prior to the delegate’s decision, and about which the delegate had other information; and

(b)    the first and second letters (being letters of support) appeared to have been written at the appellant’s request after the delegate’s decision and the third and fourth letters were letters of support which predated the delegate’s decision. As a number of supporting documents were provided with the visa application, it was noted that no explanation was provided as to why the appellant did not provide those letters at that time.

4    Additionally, the IAA was not satisfied that exceptional circumstances existed to justify considering the Department of Foreign Affairs and Trade (DFAT) country information report on Sri Lanka, dated 16 February 2015 (2015 DFAT Report) referred to in submissions, in circumstances where DFAT had issued a number of reports on Sri Lanka subsequent to this document which contained a more recent analysis. The IAA took new information into account in the form of the DFAT country information report of January 2017.

5    Additionally, also of present relevance, is that the IAA made a number of adverse findings in relation to certain of the appellant’s claims characterising them as being “far-fetched” and “lacking in credibility”.

6    In particular, the IAA:

(a)    found the appellant’s claim that he was recognised by a paramilitary member at a checkpoint in 2004, after he returned from Qatar, to be “implausible, far-fetched and lacking in detail”;

(c)    did not accept that in 2004 or 2011 an unnamed person attempted to abduct the appellant;

(d)    was not satisfied that the time the appellant spent out of Sri Lanka, after departing and returning to the country on three occasions, would cause the authorities to impute him with a pro-LTTE political opinion;

(e)    found that the appellant had never been a person of interest to the Sri Lankan authorities because of his travel history prior to 2012;

(f)    did not accept the appellant’s claims to have been actively pursued by the army and paramilitary upon his return from overseas in 2004, 2010 or 2011;

(g)    did not accept the appellant had ever lodged a police complaint about threats or that this caused the police to start investigating him; and

(h)    found the appellant was not a person of interest to the army, paramilitary or Sri Lankan police for any reason prior to his departure by boat.

7    Overall, having regard to the country information, the IAA was not satisfied that the appellant faced a real chance of serious harm should he return to Sri Lanka, and was not satisfied that the appellant did face a real risk of serious harm as a failed asylum seeker who departed illegally.

8    Two grounds of review were advanced before the primary judge. The first was an assertion that the IAA had failed to make various factual findings; the second was that the IAA had fallen into legal error by failing to interview the appellant or invite him to comment in writing on adverse information. As to the first ground, the primary judge found the appellant’s submissions amounted to nothing more than an invitation to engage in impermissible merits review. The ground was rejected on the basis that the primary judge concluded that the findings made by the IAA were open to it and could not be said to be either illogical or unreasonable.

9    As to the second ground, the primary judge found that there was no legal error. The primary judge referred to the scheme of review under Pt 7AA of the Act being one which, pursuant to s 473DB, requires the IAA to review a fast track reviewable decision by considering material provided to it under s 473CB without accepting or requesting new information.

10    Further, after referring to the fact that procedural fairness obligations are codified by s 473DA (being an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the primary judge found that no jurisdictional error arose by reason of a failure to invite the appellant to attend an interview, nor was the IAA required to put to him the new country information relied upon (that is, the later DFAT reports) because of the provisions of s 473DE(3)(a).

11    Initially, when the notice of appeal was filed in this court in February 2018, the two grounds advanced before the primary judge were repeated. Following a series of procedural steps, the matter was listed for hearing in August 2018. On that date, the Minister’s representative was given a set of written submissions prepared on behalf of the appellant which had been filed the previous day. Those submissions raised grounds different from the filed notice of appeal. In the circumstances, I considered the appropriate exercise of discretion was to allow the appellant to advance the contentions raised in the belatedly filed submissions and treat them as, in effect, an amendment to the grounds of appeal. In those circumstances, in order to do justice between the parties, I adjourned the matter part-heard in order to allow the Minister to file submissions directed to those reformulated grounds.

12    By these means, the appellant now raises the following four grounds of review:

(a)    the primary judge failed to conclude that the IAA erroneously applied the complementary protection criterion, as the IAA confined its assessment to the appellant’s likely treatment under the Immigrants and Emigrants Act 1948 (a statute which now forms part of the domestic law of Sri Lanka), rather than considering the totality of the circumstances which the appellant would face upon his return (ground 1);

(i)    the primary judge failed to conclude that the IAA misapplied s 473DD of the Act insofar as it found that no exceptional circumstances existed to justify consideration of “new information” (ground 2);

(j)    the primary judge failed to conclude that the IAA denied the appellant procedural fairness by failing to invite him to an interview, and failing to provide him with an opportunity to proceed to argument or comment (ground 3); and

(k)    the primary judge erred in not finding that the IAA failed to engage in a “thoughtful exercise” as to whether the “exceptional circumstances” criteria in s 473DD of the Act were satisfied (ground 4).

13    It is convenient to deal with each of these grounds in turn.

Ground 1: Complementary Protection

14    The difficulty with considering this ground is that, as I raised at the initial hearing of this matter in August, beyond summarising the IAA’s reasons with respect to the complementary protection criterion, the primary judge did not deal (either explicitly or implicitly) with the adequacy, propriety or correctness of the IAA’s reasoning in this regard. This characterisation is accepted by the Minister. Notwithstanding this, the Minister contends that the omission by the primary judge is explicable on the basis that the ground was not raised clearly before the primary judge.

15    In these circumstances a notice of contention was filed, given that the appellant now seeks (and was informally granted leave) to raise a case that was not put directly to the primary judge and which the primary judge does not appear to have considered.

16    Notwithstanding the primary judge did not deal with the issue, it has no ultimate merit. A review of the IAA’s reasons under the heading “Complementary Protection Assessment” does not reveal error. In particular, the IAA approached its analysis by first referring to conclusions to be drawn from the country information that young Tamil males are no longer at a real risk of harm by reason of their identity as Tamils. The IAA then accepted that:

(a)    between 2002 and 2003, the appellant worked in an LTTE controlled area and was interrogated about possible LTTE support;

(b)    on one occasion the appellant was mistreated and the LTTE regarded him with suspicion;

(c)    there were paramilitaries operating in the appellant’s home area;

(d)    the appellant lived next door to an army camp and this increased his visibility to soldiers;

(e)    prior to 2004, the appellant was regularly caught up in the army’s round up operations in his area, during which he and other Tamils were interrogated; and

(f)     the appellant spent the final years of the Civil War mostly outside of Sri Lanka.

17    Having made these findings, the IAA then found at [35] that the appellant did not have a profile with the authorities and ultimately accepted that the appellant would not face a real chance of harm in relation to any or all of the reasons identified by the appellant upon return. It was for the same reasons that the IAA also found that there was not a real risk that he would suffer significant harm.

18     The IAA then considered at [36]–[38], whether the appellant’s position as a failed asylum seeker who departed Sri Lanka illegally would give rise to a “real risk” that he would face “significant harm”. Although accepting that the appellant would be required to pay a fine or may be held in detention for a short period, the IAA was neither satisfied that the imposition of a fine nor the short period of detention amounted to significant harm.

19    Finally, the IAA concluded that by considering the appellant’s circumstances “in their totality”, these circumstances did not give rise to a “real risk” of “significant harm”.

20    As the Minister submits, the process revealed in the IAA decision reflects and amounts to a proper and orthodox application of the “complementary protection” criterion, and no error is established.

Ground 2: Section 473DD “Exceptional Circumstances”

21    There is no substance to this ground. The IAA did not consider new information as it was not satisfied that “exceptional circumstances” existed within the meaning of s 473DD(a) of the Act. The primary judge was correct to find that the IAAs consideration of the new information was without error, as the IAA considered “both whether the new information could have been presented to the Minister and an evaluation of the significance of the new information in the context of the [appellant’s] claims”. Hence, the IAA considered the matters set out in both ss 473DD(b)(i) and (ii) of the Act. It follows that the primary judge found that there was no basis to infer that the IAA adopted an erroneously narrow meaning of “exceptional circumstances”.

22    As Thawley J recently identified in CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 at [26], in his comprehensive summary of the principles applicable to the application of s 473DD, it is necessary to identify the circumstances contended to be exceptional and how consideration of such asserted exceptional circumstances might have informed the IAA’s consideration of s 473DD(b).

23    To the extent that it is said that the 2015 DFAT Report constituted new information, the report predated the delegate’s decision, no explanation was provided as to why the report could not have been provided to the delegate prior to the delegate’s decision, and there were, as the IAA noted, a number of subsequent reports containing more recent analysis.

24    As to the three news articles, two of the articles predated the delegate’s decision and no explanation was provided for not producing them. The other article, which did not state the date of publication, concerned an arrest in 2015, prior to the delegate’s decision. Finally, in respect of the third article, there was other information before the delegate concerning the arrest.

25    Similarly, as to the four supporting letters, the first and second letters were not in the appellant’s possession before the delegate’s decision and could not have been provided beforehand, although the appellant provided a number of supporting documents with his visa application. As to the first and second letters, there was no explanation provided to the IAA as to why they had not been obtained prior to the delegate’s decision, notwithstanding that similar letters of support had been provided at that time. The third and fourth letters were letters of support which predated the delegate’s decision, and again no explanation was provided as to why those letters were not provided earlier.

26    It follows that the IAA considered each of the items of “new information” against the provisions of s 473DD and considered the content of the material and its relationship with the appellant’s claims. It follows that the primary judge was correct in concluding that the IAA properly construed and applied s 473DD.

Ground 3: Failure to invite appellant to hearing

27    The primary judge’s reasoning set out at [48]–[50] does not reveal error. It is clear that no provision in Pt 7AA of the Act obliges the IAA to provide a fast track applicant with an interview. This is not a case where the IAA did not have before it all the information relevant to the review or where new factual issues arose for the first time during the course of the IAA’s review. The IAA possessed documentary evidence in support of the claims and conducted its review accordingly. It could not be said that it was legally unreasonable for the IAA to proceed as it did.

Ground 4: Failure to engage in a “thoughtful exercise”

28    It is a little difficult to understand what is meant by this ground of appeal other than an invitation for the Court to conduct a merits review of the IAA’s decision. To the extent that it is more specific and seeks to advance a contention that there was a lack of a considered approach to considering whether there were exceptional circumstances under s 473DD, I have already dealt with this in relation to ground 2.

29    It follows that this contention has no merit.

Notice of Contention

30    I have already dealt with one aspect of the notice of contention, but it is appropriate that I deal with the other ground advanced on behalf of the Minister. At [47] of the primary judge’s reasons his Honour characterised the IAA obligations of procedural fairness as incorporating an obligation to invite the appellant to put on submissions and new information. The primary judge noted that:

… on the face of the material before the Court, the [IAA] complied with its obligations of procedural fairness by the sending of the letter to the applicant giving the applicant an opportunity to put on submissions and new information. Ground 1 fails to make out any jurisdictional error.

31    In this respect, it is accepted that his Honour was in error because contrary to his Honour’s observation, there is no obligation of procedural fairness incorporating an obligation to invite the applicant to put on submissions. For reasons I have already explained, however, the other reasons given for dismissing ground 1 are not shown to be erroneous.

Final Matter

32    During the course of his oral submissions today, the appellant raised an issue relating to events that occurred in Sri Lanka during the course of the last week or so. I explained to the appellant that my role was not to conduct what would amount to a merits review on the basis of new information, but rather to ascertain whether or not error is demonstrated in the primary judge’s reasons sufficient to grant the relief he seeks in the notice of appeal. For the reasons I have explained, no such recognisable error exists and the appeal in these circumstances must be dismissed with costs.

Associate:

Dated:    23 November 2018