FEDERAL COURT OF AUSTRALIA

AXR18 v Minister for Home Affairs [2018] FCA 1894

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant is to pay the first respondent’s costs to be assessed in default of agreement.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant appeals the dismissal by the Federal Circuit Court of Australia of his application under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority: AXR18 v Minister for Immigration [2018] FCCA 2336. The Authority had affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.

2    The appellant was self-represented on the appeal, and conducted the appeal with the assistance of an interpreter.

Background

3    The appellant is a citizen of Sri Lanka who was born into a Hindu Tamil family in a village in the Eastern Province of Sri Lanka. He came to Australia by boat, arriving in November 2012. The appellant is married and has two children. His wife and children remain in Sri Lanka.

4    The appellant made an application for a protection visa in October 2016. He claimed in his application for a protection visa that between 2000 and 2003 he worked for the Liberation Tigers of Tamil Eelam (LTTE) because it was compulsory for one member of a family to do so. The appellant stated in his application that when he finished with the LTTE he found an apprenticeship with an electrician with whom he continued working until January 2012.

5    The appellant claimed that from 2009 onwards he started to be threatened regularly by people whom he believed to be from the Elam Peoples Democratic Party. The appellant claimed that he was abducted on four occasions: in August 2009; September 2009; January 2010; and March 2011. The appellant claimed that on each occasion he was kept for 2, 3 or 4 days, a demand for ransom was made, and when he agreed to pay the ransom, the kidnappers released him. The appellant claimed that on the first three occasions, the kidnappers threatened to kill him, but they did not beat him. The appellant claimed that on the fourth occasion he was tortured: the kidnappers beat him, and burned him with cigarettes from which he had scars. The applicant claimed that upon the fourth occasion he was kidnapped he escaped, and took a ride with a lorry driver who took him to Colombo. The appellant claimed that he hid in Colombo for about a year and 5 or 6 months before arranging travel to Australia. However, there was one occasion when the appellant travelled away from Colombo for his son’s birthday before returning to Colombo and commencing his journey to Australia.

6    The appellant claimed that his brother-in-law, who had left Sri Lanka for Switzerland in 2009, had the same problem, and was also abducted and held for ransom.

7    The appellant claimed that after he escaped the abductors saw his wife on a number of occasions, and that they threatened to abduct her if she did not tell them where the appellant was. The appellant’s wife moved house and went to live with her parents because she did not feel safe.

8    The appellant claimed that if he returned to Sri Lanka he was afraid that he would be killed by people associated with the Eelam People’s Democratic Party (EPDP) on account of his prior involvement with the LTTE.

9    On 7 April 2017 a delegate of the Minister refused the appellant’s application for a protection visa on the ground that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) of the Migration Act. The delegate did not accept that the appellant had presented a true account of the incidents which led to the appellant leaving Sri Lanka, and was not satisfied that the appellant was a person of adverse interest to the Sri Lankan authorities, the members of EPDP or anyone else in regard to his actual or perceived links with the LTTE.

The decision of the Immigration Assessment Authority

10    The appellant was treated as a “fast track applicant” for the purposes of review of the decision of the delegate. That had the consequence that the review of the delegate’s decision was subject to the terms of Part 7AA of the Migration Act, which provide for what the simplified outline in s 473BA of the Act describes as “a limited form of review” of a “fast track decision”. Under s 473CA of the Act the Minister must refer the decision to Immigration Assessment Authority (Authority) as soon as reasonably practicable after the decision is made. For a more complete description of the scheme established by Part 7AA of the Act, see Plaintiff 174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 at 485-490 [7]-[38].

11    Material to the present case is that s 477D of the Migration Act limits the capacity of the Authority to have regard to new information upon its review of a delegate’s decision to refuse an application for a protection visa. Section 473DD provides –

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

12    Section 473DC defines “new information” in the following terms:

(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.

13    The appellant furnished a submission to the Authority dated 7 May 2017. In that submission the appellant claimed that two of his brothers, “K” and “S”, had undergone rehabilitation in Sri Lanka because they were perceived to be members of the LTTE. The appellant claimed that one brother fled to Malaysia and was residing there. The appellant attached some documents in support of these claims. The appellant stated that he did not disclose this information previously due to fear: he feared that this information would have an adverse impact upon him and that he would have been detained in an Australian detention centre for longer.

14    On 5 February 2018 the Authority affirmed the decision not to grant the applicant a protection visa. The Authority gave detailed reasons for its decision.

The application to the Federal Circuit Court

15    On 27 February 2018 the appellant filed an application in the Federal Circuit Court seeking judicial review of the decision of the Authority in exercise of the jurisdiction conferred on that Court by s 476 of the Migration Act. In order to succeed, the appellant had to establish that the Authority’s decision was affected by jurisdictional error: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [17]-[31].

16    The appellant advanced three grounds of review in his application to the Federal Circuit Court which I shall consider further below.

17    The appellant was self-represented at the hearing before the Federal Circuit Court. Paragraph [25] of the primary judge’s reasons indicates that the appellant’s submissions at the hearing were essentially concerned with the merits of his claim for a protection visa rather than with the identification of jurisdictional error. This is not to suggest any criticism of the appellant, who as I have noted, was self-represented.

18    At the hearing on 20 June 2018 the primary judge dismissed the appellant’s application.

The delay in publishing the written reasons of the Federal Circuit Court

19    The primary judge’s orders were made at the hearing on 20 June 2018. I was informed by the counsel for the Minister that the primary judge gave ex tempore reasons. However, the written reasons of the primary judge were not published until 24 August 2018.

20    In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26] the Full Court referred to the late publication of written reasons as an “undesirable state of affairs”, and stated that written reasons should be published shortly after ex tempore reasons, and well within the appeal period. Although the written reasons in this case were published more than two months after the date of the orders dismissing the application, the appellant nonetheless filed his notice of appeal in this Court on 10 July 2018, which was within the 21 day period fixed by r 36.03 of the Federal Court Rules 2011 (Cth).

The appeal to this Court

21    In this case, the delay in the publication of the written reasons had the effect that the appellant, and any person who may have assisted the appellant in the preparation of the notice of appeal to this Court, did not have the benefit of the written reasons in formulating the grounds of appeal. This explains why the appellant’s sole ground of appeal is formulated as follows –

The FCC Judge committed jurisdictional error when dismissing my case in the FCC. I am unable to articulate reasons for the appeal as the FCC judge has not published his reasons.

22    Counsel for the Minister submitted in writing that the Court should take the same course as that taken in SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 and dismiss the appeal on the basis of inadequacy of grounds. In SZTOG, like the present case, the reasons of the Federal Circuit Court were not available to the appellant at the time the notice of appeal to this Court was filed. The appellant in SZTOG said only the following in relation to the grounds of appeal –

The grounds of appeal will be prepared as soon as His Honour’s judgment becomes available.

23    The Court in SZTOG concluded at [32] that, in the absence of the notice of appeal setting forth any grounds of appeal, and in the absence of grounds of appeal being identified, the appeal should be dismissed.

24    In the present case, the sole ground of appeal is more developed than the ground of appeal in SZTOG, because it at least alleges error by the primary judge. At the hearing, counsel for the Minister did not press the submission that the appeal should be dismissed on the basis of alleged inadequacy of grounds. The appropriate course in this case is to treat the ground of appeal as a generalised challenge to the reasoning of the Federal Circuit Court on the three particularised grounds of judicial review alleged in the Federal Circuit Court and considered by the primary judge: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [2]. Counsel for the Minister anticipated that the Court might take this course, because written submissions were made on behalf of the Minister in the alternative on the assumption that the Court would treat the notice of appeal in this way.

25    I confirmed at the outset of the hearing that the reasons of the primary judge, the notice of appeal, and the Minister’s written submissions on the appeal had been interpreted to the appellant. Counsel for the Minister addressed the Court by taking the Court to the principal documents in the appeal book, and identifying those parts of the documents that were material to the grounds of review before the primary judge. Counsel then addressed each of the three grounds of review that were considered by the primary judge.

26    In reply, the appellant said that the situation in Sri Lanka had changed, and that things were getting worse. The appellant said that the situation would be very bad if he was sent back to Sri Lanka now. The appellant said that all the evidence that he had given was true. I informed the appellant that my role was as an appeal court was concerned with whether the decision and the judgment below made was in accordance with the laws of Australia.

Consideration

27    I shall now consider the reasons of the Federal Circuit Court for rejecting the appellant’s grounds of review.

Ground 1 – new information

28    Ground 1 of the appellant’s application before the Federal Circuit Court was as follows –

Ground 1

The IAA committed legal error when it concluded that it was not satisfied that there are exceptional circumstances to justify considering the new information relating to the applicant’s brother “K” and “S”.

Particulars

•    The Authority took a narrow view when considering if it was satisfied that there were exceptional circumstances to justify considering the new information about the applicant’s brothers [7] - [17].

•    The applicant provided documentary evidence in support of the new claim that his brothers “were perceived to be LTTE members and underwent rehabilitation” [6].

•    The IAA did not accept that it was due to fear that the applicant may be detained that he did not divulge this information about his brothers.

•    The IAA’s reasoning at [9] focuses on what the applicant disclosed/his willingness to disclose about his LTTE links. In fact the applicant claimed he “worked” for the LTTE unlike his brothers who he claims were “were perceived to be LTTE members and underwent rehabilitation”.

•    The fact that the applicant was willing to disclose his L TTE involvement should not be the reason to not consider the new information regarding the brothers who had undergone rehabilitation.

•    Disclosing details of having “worked” for the LTTE would have been easier than to have disclosed details about siblings who “were perceived to be LTTE members and underwent rehabilitation”. At [66] the IAA accepted that the applicant’s role in the LTTE was low level.

•    The IAA failed to consider that exceptional circumstances, included circumstances that were in fact exceptional.

•    The documentary evidence which corroborated the new information was also not considered and should have been considered before concluding that the new information could not be considered.

29    I have referred at paragraph [13] above to the appellant’s claims in submissions put to the Authority in relation to his brothers, “K” and “S”. The Authority treated these claims as new information, and I do not consider there to be any doubt on the material that it was new information, and indeed the appellant’s submission to the Authority treated it as new information. The Authority considered the appellant’s explanation for not having provided the information before the delegate’s decision.

30    At paragraphs [7] and [12] of its reasons the Authority had regard to the documentary evidence in support of the claims, but expressed doubts about whether that evidence was genuine, and whether the claims about K and S were credible.

31    The Authority stated that the appellant had not provided any information to explain how he believed his brothers’ profiles and rehabilitation would cause problems for him upon return, nor how or whether it caused problems for him in the past, particularly taking into account that he was still residing in Sri Lanka during the time he claims both of his brothers were undergoing rehabilitation and for one to two years after their respective releases. In relation to the reasons for not mentioning the information earlier, the Authority considered that it was not plausible that the appellant was too afraid to mention the information in 2016 and 2017 during the visa application process. In relation to the new information relating to K and S the Authority concluded as follows –

17.    Having regard to all of the factors set out above, I do not accept the applicant’s reasons for not raising the claims before the delegate made her decision. This leads me to doubt the timing and content of the claims. I also have doubts arising from the vagueness of the information provided and the lack of any contextual detail around the brothers’ circumstances and whether or how it impacted on the applicant while in Sri Lanka. The applicant has had ample opportunity to provide information on this matter and I have decided not to exercise my discretion to seek information on these matters from the applicant. The applicant has not satisfied me as to either of the matters in s.473DD(b). The applicant has not explained why he believes the circumstances are exceptional such that the consideration of the new information is justified nor are any apparent to me on the material. I am not satisfied there are exceptional circumstances to justify considering this new information.

32    The first bullet point in the particulars of ground 1 of the application to the Federal Circuit Court alleges that the Authority took a “narrow view” when considering whether it was satisfied that there were exceptional circumstances to justify considering new information. This ground would appear to be an allusion to the reasons of White J in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at 232 [47], where his Honour accepted a submission that, in that case, the Authority seemed to have reasoned that its rejection of the appellant’s explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional, and that this reflected an inappropriately narrow reach of the term “exceptional circumstances” for the purposes of s 473DD(a) of the Migration Act.

33    Other bullet points appear to challenge the merits of the Authority’s appraisal of the new information, and the appellant’s explanation as to why it had not been provided earlier. The last bullet point alleges that the Authority did not consider the documentary evidence that corroborated the new information. As to this last point, I have indicated in paragraph [30] above that the Authority referred to the documentary evidence, but expressed doubts about its reliability.

34    The primary judge addressed ground 1 as follows –

28.    In relation to ground 1, the Tribunal took into account the nature and significance of the new information under s 473DD of the Act in respect of the applicant’s brothers. The Authority’s reasons, as referred to above, are consistent with the Authority properly taking into account both limbs of s 473DD(b) of the Act and, in particular, the Authority referred in that regard to either of the matters in s 473DD(b) of the Act.

29.    The Authority’s reasons do not support any basis upon which the Court should find that the Authority conflated the limbs of s 473DD(b) of the Act or adopted an erroneously narrow meaning of exceptional circumstances. There is no substance in the assertion that the Authority failed to consider the new information that was provided in determining whether satisfied that there were exceptional circumstances under s 473DD of the Act. No jurisdictional error as alleged in relation to ground 1 is made out.

35    Although the operative part of the primary judge’s reasons in relation to ground 1 are succinct, his Honour had summarised the background and the Authority’s path of reasoning at some length at [2018] FCCA 2336 at [4] to [22], and the primary judge’s conclusions are to be read with that summary. The judge’s reasons are also to be understood having regard to the submissions that were advanced by the appellant before the primary judge.

36    I do not consider that there was any error in the primary judge’s rejection of ground 1 of the application. In my view the Authority’s reasons, and especially paragraph [17] of the reasons which I have set out under paragraph [31] above, show that it had regard to the totality of information before it in relation to the conditions necessary to engage the cumulative conditions in s 473DD(a) and (b), and gave separate consideration to the criterion in s 473DD(a), and to the criteria in each of the alternate limbs of s 473DD(b). I am not persuaded that the Authority made any error of the type identified in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at 232 [47].

Ground 2 – unreasonableness

37    Ground 2 of the appellant’s application before the Federal Circuit Court was as follows –

Ground 2

The IAA committed legal error as its decision to not consider essential integers of the applicant’s claims was so unreasonable that no reasonable decision maker would make such decision.

Particulars

•    The IAA did not accept that the applicant was abducted a further three times as claimed [34].

•    The IAA’s reasoning at [34] - [50] was so unreasonable.

•    More details to be provided once court book is prepared.

38    This ground of review does not identify any “essential integers” other than the appellant’s claim that he was abducted on three occasions which claim the Authority rejected. The Authority stated at [34] of its reasons that there were numerous inconsistencies in the appellant’s evidence about the abduction on the claimed second, third and fourth occasions. The Authority set out at some length at paragraphs [35] to [49] its analysis of the material, and concluded at [50] –

50.    Given the numerous inconsistencies and implausibilities, and at time the vagueness, in the applicant’s accounts regarding the abductions, his escape and time in hiding, and my concerns about the applicant’s return on his son’s birthday, I do not accept the second, third, or fourth abductions occurred. I do not accept he was held for three months and tortured, nor that he escaped and lived in hiding until he left Sri Lanka. I do not accept these claims are genuine.

39    The primary judge addressed ground 2 at paragraph [30] of his reasons as follows –

30.    In relation to ground 2, there is no essential integer of the applicant’s claims that has been identified that was not the subject of consideration. To the extent that ground 2 takes issue with the adverse finding in relation to the applicant’s claims of having been abducted on four occasions, the Authority gave logical and rational reasons for rejecting the applicant’s claims to have been abducted on a further three occasions. Those reasons cannot be said to be unreasonable. They were open to the Authority taking into account the credit considerations as summarised above. Those considerations cannot be said to be illogical or irrational. The decision of the Authority not to accept the applicant’s claims that he was abducted on a further three occasions cannot be said to be legally unreasonable, irrational, or illogical. No jurisdictional error as alleged in ground 2 is made out.

40    Like ground 1, the primary judge’s reasons for his rejection of ground 2 should be read together with his summary of the background and the Authority’s path of reasoning at [2018] FCCA 2336 at [4] to [22]. The Authority’s reasons for rejecting the appellant’s claims concerning his second to fourth abductions were based on credibility grounds that were explained by the Authority. I do not consider that there is any error in the primary judge’s rejection of ground 2.

Ground 3 – failure to consider a claim

41    Ground 3 of the appellant’s application before the Federal Circuit Court was as follows –

Ground 3

The IAA failed to consider a claim that the applicant made concerning a paramilitary group member harassing the applicant’s wife

Particulars

•    The applicant claimed that an EPDP member harassed his wife [38].

•    The IAA did not consider this claim concerning the harassment the applicant’s wife faced by the EPDP member.

•    The IAA failed to consider future harm the applicant may face due to this EPDP member.

42    In my opinion, there was no substance to ground 3. The Authority referred to the appellant’s claims that a group harassed his wife at paragraphs [23], [38], [48], and [49] of its reasons. The Authority stated at [49] that the appellant’s evidence differed regarding how many people had visited his home and harassed his wife following his departure from Sri Lanka. At paragraph [51] of its reasons the Authority stated that it did not accept that the appellant’s wife was harassed after he left the country by persons looking for him. At paragraph [54] to [84] the Authority gave lengthy consideration to the question whether the appellant had a well-founded fear of persecution, and in that context considered, particularly at paragraph [56] whether the appellant would face any threat from the EPDP.

43    The primary judge rejected ground 3 for the reasons set out at [31] and [32] –

31.    In relation to ground 3, it is apparent from the Authority’s reasons, as referred to above, that the Authority took into account the applicant’s claims concerning EPDP members harassing his wife. The Authority expressly referred to the applicant’s claim that after he left Sri Lanka EPDP members went and harassed his wife and at paragraphs 48 to 49, the Authority recounted the applicant’s evidence to the delegate about the alleged harassment of his wife and referred to the inconsistency in the applicant’s evidence about the number of times his wife had been harassed. At paragraphs 50 to 51, the Authority did not accept the applicant’s claims about his abductions, including that the applicant knew that his abductors were from the EPDP, which the applicant alleged had been told to him by his wife, or that he had ever been targeted by that group. Materially, in paragraph 51, the Authority expressly identified not accepting that the applicant’s wife was harassed after he left the country by persons looking for him.

32.    Those factual findings were open to the Authority and are sufficient to dispose of the applicant’s claims that the EPDP members harassed his wife. The Authority expressly referred to not accepting that the applicant faces harm from the EPDP upon return and did not accept that the applicant’s family members had been harassed, extorted, or otherwise harmed since his release in 2009 and found the applicant was not of any interest to any criminal groups or individuals. The Authority expressly rejected that there is a real chance of the applicant facing harm through abductions, extortion, or resulting harm from the claimed perpetrators of the 2009 abduction, nor others upon return of the applicant to Sri Lanka. The Authority also expressly referred, in relation to complimentary protection, to the fact that the incident of abduction in 2009 was an isolated, and that the Authority was not satisfied that those persons have pursued the applicant or any member of his family since this incident. Those adverse findings were open to the Authority and cannot be said to be illogical or irrational. There was no failure by the Authority to consider the applicant’s claim in relation to harassment of his wife as alleged in ground 3.

33.    Further, the Authority’s reasons reflect a correct identification of the relevant law in relation to whether the applicant has a well-founded fear of persecution in the reasonably foreseeable future and in relation to determining whether the applicant has a real risk of suffering significant harm in the reasonably foreseeable future. There was no failure by the Authority to consider the applicant’s claims and the adverse findings made by the Authority were open to the Authority and dispositive of the applicant’s claims. No jurisdiction error as alleged in ground 3 is made out.

44    There was no error in the primary judge’s reasons for rejecting ground 3 of the application.

Conclusions

45    The appeal will be dismissed. The appellant should pay the first respondent’s costs to be assessed in default of agreement.

Associate:

Dated:    28 November 2018