FEDERAL COURT OF AUSTRALIA

CYO16 v Minister for Immigration and Border Protection [2019] FCA 2

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on the ground in the draft notice of appeal is refused.

2.    The appeal is dismissed.

3.    The appellant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia: see CYO16 v Minister for Immigration and Border Protection [2017] FCCA 1250. The appellant, who I will also refer to by his pseudonym CYO16, is a citizen of Sri Lanka who arrived on Christmas Island as an unauthorised maritime arrival on 10 October 2012.

2    The primary judge dismissed CYO16’s application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 21 September 2016 to affirm a decision of a delegate of the Minister for Immigration and Border Protection made on 18 July 2016 to refuse to grant him a Safe Haven Enterprise visa (or SHEV). The delegate reached his decision following an interview with the appellant referred to in the IAA’s decision record (or DR) as a “SHEV interview”.

Protection claims

3    In the DR at [7], the IAA summarised the appellant’s claims as follows:

•    The applicant fears harm from the Sri Lankan authorities, including the Sri Lankan army and the Criminal Investigation Department (CID) on the basis of his previous involvement with the Liberation Tigers of Tamil Eelam (LTTE).

•    In 1994 and 1995, the LTTE ordered that one member of each household was required to join the LTTE. In April 1994, the LTTE forcibly recruited the applicant. His father attempted to secure his release by paying 50,000Rs. The LTTE took the money but did not release the applicant. The applicant’s cousins were senior members of the LTTE at the time and because of their involvement, they organised for the applicant to be released after six months.

•    After his release, the Sri Lankan army arrested him and kept him in a camp for four days. They beat him, tortured him and questioned him about his involvement with the LTTE. He was subsequently released and required to report to the local police station every day. He did this for two weeks. He was beaten by the Sri Lankan army during the reporting. One month later he moved to Trincomalee to complete his studies. He did not tell the army about this move and they started searching for him. They continued searching for him for a four year period. He returned to Batticaloa after his studies were complete however discovered the authorities were looking for him so in 2006, he departed Sri Lanka for Qatar. Since arriving in Australia the applicant’s father has advised that the CID have been to their house and are still looking for the applicant.

•    The applicant fears harm from the Karuna Party and other unidentified persons on the basis of his previous involvement with TMVP.

•    The applicant’s father ran and won a seat at the Regional Council Election in 2008 representing the TMVP. The LTTE shot at the TMVP office after the election and injured many people, including the applicant’s parents.

•    In 2009, the applicant’s father had a heart attack and attempted to resign from TMVP however they did not accept his resignation. His father was threatened by the LTTE, members of the Karuna group and other unidentified persons.

•    In 2012, there was an election for the position of Central Minister. Pillayan (head of the TMVP) was the Central Minister at the time. The applicant’s father participated in promoting and supporting the TMVP. The applicant was also involved in printing leaflets and other propaganda material. TMVP won the seat again and celebrated in front of the applicant’s house. Members of the Karuna group came to the house and beat the applicant and his father.

•    His father made a complaint to the police but no action was taken. The applicant’s father feared the applicant would be harmed so organised his travel out of Sri Lanka for Australia.

•    The applicant has previously resided in Dubai for three months in 1999 and also Qatar for three years between 2006 and 2009.

4    I will employ the same abbreviations as used by the IAA in these reasons

Summary of IAA’s findings

5    At [9]-[11] of its decision record, the IAA noted discrepancies between the accounts given by CYO16 at his arrival interview and at his SHEV interview of the circumstances concerning his claim to have been recruited by the LTTE for a six-month period in 1994 or 1995. After listening to his arrival interview, the IAA did not accept that CYO16 was unable to provide the full story at his arrival interview due to stress. Accordingly it did not accept that he was forcibly recruited by the LTTE in 1994 or arrested, held and beaten by the Sri Lankan army in 1995.

6    The IAA also noted differences in the appellant’s evidence in his SHEV application and his statement of claims concerning the period in which he resided in Trincomalee. The IAA accepted that CYO16 went to Trincomalee to complete his studies. However, it rejected the claim that he had fled to Trincomalee to avoid the Sri Lankan army or authorities and the claim that his father had advised him the CID had come looking for him since his arrival in Australia because of his previous involvement with the LTTE. The IAA rejected those claims on the basis that it had already rejected his claims to have been forcibly recruited by the LTTE in 1994 and that he had been arrested and beaten by the Sri Lankan army in 1995. The IAA also noted that since his claimed involvement with the LTTE, CYO16 had obtained two genuine passports and travelled freely in and out of Sri Lanka a number of times to Dubai and Qatar and had not faced adverse consequences from authorities with whom he would have had to have engaged during the process: DR at [12]-[13].

7    The IAA noted that, despite having been asked at the arrival interview if he or any of his family members have been associated with political organisations or involved in anti-government activities, he told the delegate for the first time at the SHEV interview that he had two cousins who were both senior members of the LTTE and he had been released by the LTTE because of their influence. Having rejected the claim that CYO16 had been forcibly recruited by the LTTE, the IAA did not accept that his cousins assisted in his release. The IAA did accept CYO16’s evidence given at the end of the SHEV interview that the two cousins had gone missing since the end of the civil conflict, despite his inability to provide further details about the circumstances in which that occurred. The IAA stated that CYO16 had not faced any previous harm on the basis of his cousins’ involvement with the LTTE: DR at [14].

8    The IAA accepted that CYO16’s father was an elected member of the Tamil Makkal Viduthalai Pulikal (TMVP) in the Batticaloa district in 2008, despite spelling differences in the name of the member in documents on which CYO16 relied which had caused the delegate to reject that claim. The IAA also accepted that CYO16’s father had received threats from the LTTE on that basis in 2008. The IAA then noted that the appellant was in Qatar at that time so that he did not receive any threats during that period. In any event, the IAA was not satisfied that threats to CYO16’s father amounted to serious harm because, on CYO16’s own evidence, his father was able to continue his involvement with TMVP until 2013 and (based on a DFAT country report on Sri Lanka dated 18 December 2015, which I will refer to as the December 2015 DFAT Report) the LTTE was defeated in 2009 and no longer exists nor does it pose a threat: DR at [15]-[18].

9    Despite some inconsistencies in CYO16’s claims, given his father’s involvement with the TMVP, the IAA accepted that CYO16 had been involved in the election campaign in 2012 for the TMVP. Based on discrepancies in CYO16’s accounts in his arrival interview and the SHEV interview and inconsistency with documents provided (such as a complaint to the Human Rights Commission concerning when and how he was mistreated following the 2012 elections) and responses which it found implausible, the IAA did not accept that the Karuna party had threatened CYO16 or his father around the time of the 2012 elections or that his family have been approached, threatened or harmed since he left Sri Lanka: DR at [19]-[25].

10    Given that CYO16 had “demonstrated a reasonable level of English” in his arrival and SHEV interviews and because he had not been represented by the Humanitarian Group in the SHEV interview, the IAA did not accept CYO16’s assertion that inconsistencies in his evidence could be attributed to the fact that the Humanitarian Group assisted CYO16 to prepare his SHEV application and statement of claims or that they purposely omitted aspects of his claims: DR at [26].

11    After considering the definitions of “refugee” and “well-founded fear of persecution” in s 5H(1) and s 5J of the Migration Act 1958 (Cth), the IAA did not accept that CYO16 ever had involvement with the LTTE or that he had faced harm from Sri Lankan authorities on that basis or that he would face harm from those authorities on that basis upon his return: DR at [27]-[29]. The IAA accepted that two cousins were members of the LTTE and they went missing in 2010. The IAA found that CYO16 had not faced any harm previously on the basis of his family members being associated with the LTTE and his family continue to reside in Sri Lanka and have not faced harm on that basis. The IAA found that there was no credible evidence that CYO16 faces a real chance of harm on that basis now or in the foreseeable future: DR at [30].

12    The IAA noted that it had found that CYO16’s father was a member of the TMVP and elected a member of the Regional Council in 2008 and he received some threats then from the LTTE, but found that the threats did not amount to serious harm. The IAA also noted its finding that CYO16 was involved in some political activities in the 2012 election campaign. However the IAA did not accept that CYO16 or his family were threatened or harmed by members of the Karuna Group or other unidentified persons. The IAA took into consideration CYO16’s profile if he returned, having regard to his father’s TMVP membership and the role CYO16 played in the 2012 elections and whether he would have a real or imputed political opinion on that basis. Because his father continued to reside in the area and there was no evidence to indicate that he or his family has faced any harm from the Karuna group or any other unidentified persons based on his involvement with the TMVP, the IAA was not satisfied that CYO16 would face harm on that basis either. Based on the December 2015 DFAT Report (at 2.33, 2.37), the IAA found that the security situation in Sri Lanka, including in the east where CYO16 comes from, has improved greatly since the conflict ended in May 2009 and there were no reports available that TMVP supporters were targeted. The IAA was therefore not satisfied that CYO16 would face a real chance of harm on that basis now or in the reasonably foreseeable future: DR at [31].

13    The IAA accepted that CYO16 is a Tamil from the Eastern Province of Sri Lanka and would be returning as a failed asylum seeker and as someone who departed Sri Lanka illegally: DR at [32].

14    The IAA referred to the December 2015 DFAT Report (at 3.3) and noted that there were currently no official laws or policies that discriminate on the basis of ethnicity or language including in relation to education, employment or access to housing and that implementation of laws and policies by the Sirisena government was generally without discrimination. It also noted that a report of the United Nations High Commissioner for Refugees published in 2012 did not list Tamils, on the basis of ethnicity alone, as having a potential risk profile: DR at [33]. Based on that DFAT report (at 5.27), the IAA noted that the cessation of forced registration of Tamils suggested that the trend of monitoring and harassment of them in day to day life had eased since the end of the conflict and the Tamil community feels more confident to refuse or question the motives or monitoring activities undertaken by authorities, if the activities do occur: DR at [34]. The IAA noted that, while there have been reports of atrocities committed against Tamils in Sri Lanka, there was no credible evidence before it to indicate the appellant faced such harm in the past based on his ethnicity. It noted that during the SHEV interview, aspects of this country information were put to him without response. The IAA noted that the appellant’s wife, child and parents, all Tamils who continue to reside in Batticaloa, have not faced harm based on their ethnicity and the IAA was therefore not satisfied that the appellant had a profile which would attract adverse attention from the Sri Lankan authorities or anyone else on the basis of his ethnicity. The IAA was not satisfied that the appellant would face a real chance of harm on that basis now or in the foreseeable future: DR at [35].

15    Based on the December 2015 DFAT Report (at 3.9), the IAA stated that the Sri Lankan constitution entitles any citizen the freedom to return to Sri Lanka and that entry and exit was governed by the Immigrants and Emigrants Act 1949 pursuant to which it was an offence to depart Sri Lanka other than by an approved port of departure. It noted that penalties included imprisonment for up to 5 years and a fine could be imposed. Penalties would be applied on a discretionary basis and almost always it was a fine: DR at [36]. Based on the same country information (at 5.31-5.33) the IAA noted that most returnees, including from Australia, are questioned by police on return and (where illegal departure is suspected) they are charged under the Immigrants and Emigrants Act. The returnees have their fingerprints taken and are transported by police to the closest Magistrates Court after investigations are completed, after which custody responsibility shifts to the courts or prison services. Generally the returnees would be in police custody for up to 24 hours unless a magistrate was not readily available. All returnees are treated according to standard procedures regardless of (among other things) their ethnicity. Prisons in Sri Lanka do not meet international standards due to overcrowding, poor sanitary conditions and a lack of resources. However DFAT reported that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally and fines had been used to act as a deterrent. If a person pleads guilty, they are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as a guarantor: DR at [37]-[39].

16    The IAA accepted that because CYO16 departed Sri Lanka illegally, he would be charged and possibly detained and questioned for a short period of time. However, it did not accept that this brief period of detention would constitute serious harm. It accepted that CYO16 may have to pay a fine for his offence of leaving Sri Lanka illegally, but it was satisfied that CYO16’s own evidence suggested he would be able to pay it and therefore this would not be a serious harm he would face if he were to return to Sri Lanka. Further, the IAA found that this potential treatment on CYO16’s return to Sri Lanka would not be directed to him in a discriminatory way. Based on the December 2015 DFAT Report (at 5.37), monitoring and fears about mistreatment reduced under the Sirisena government and the risk of harm for the majority of returnees is low. While DFAT noted some reports of mistreatment upon return by the thousands of Tamil asylum seekers, they appear to be related to those who hold an actual or imputed connection to the LTTE (contrary to the IAA’s findings in relation to the appellant). The IAA was not satisfied that the appellant’s political involvement in the 2012 elections would adversely impact upon his return to Sri Lanka as a failed asylum seeker. The IAA was not satisfied that the appellant has a well-founded fear of persecution as a failed Tamil asylum seeker who departed Sri Lanka illegally now or in the reasonably foreseeable future or that he would be pursued by the Sri Lankan authorities on that basis upon his return. Considering the appellant’s claims cumulatively and individually the IAA was not satisfied that he had a well-founded fear of persecution. The IAA concluded that the appellant did not meet the requirements of the definition of a refugee in s 5H(1) or s 36(2)(a) of the Migration Act: DR at [40]-[46].

17    The IAA also considered the complementary protection criterion and the definition of the risk of significant harm in s 36(2A) of the Migration Act at DR [47]-[48]. Based on its findings concerning CYO16’s refugee claims, the IAA found that it was not satisfied that there was a real risk of significant harm, noting the claims that CYO16 had two cousins who were members of the LTTE, that he and his father had been involved with the TMVP and that he would be returning to Sri Lanka as a failed Tamil asylum seeker who departed Sri Lanka illegally. The IAA found that CYO16 did not meet the criteria for complementary protection in s 36(2)(aa) of the Migration Act: DR at [47]-[56].

18    The IAA was not satisfied that protection obligations were owed to the appellant and affirmed the delegate’s decision: DR [46], [56].

Proposed ground of appeal

19    The appellant was not legally represented when he filed a notice of appeal which stated two grounds of appeal. Those grounds reflected grounds one and three on which he had sought review of the IAA’s decision by the Federal Circuit Court. At the hearing of the appeal he was represented by Mr Bodisco of counsel. Mr Bodisco’s written submissions, filed on 22 November 2017, sought leave to rely on a single, differently formulated, ground of appeal and at the hearing. At the hearing, counsel handed up a draft notice of appeal in the terms set out in the submissions and abandoned the grounds in the notice previously filed.

20    The ground of appeal on which the appellant sought to rely (proposed ground) is (as written):

His Honour erred by failing to find that the Immigration Assessment Authority (IAA) has breached section 473CC of the Migration Act.

Particulars

The IAA has failed to review a fast track reviewable decision referred to the Authority in circumstances where the IAA has misdirected itself that documents, namely the DFAT Country Report on Sri Lanka dated 16 February 2015 and the DFAT Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam dated 3 October 2014, were before the delegate, when they were not.

21    Relevantly to the appeal, the IAA summarised the information before it as follows:

Information before the IAA

2.    I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act).

3.    The IAA received a submission on 8 August 2016 on behalf of the applicant. The submission contains discussion as to why the applicant does not agree with the delegate’s decision. I do not consider this to be new information and have had regard to it.

4.    The applicant also provided copies of two reports published by the Department of Foreign Affairs and Trade (DFAT). The first is the DFAT Country Report on Sri Lanka, dated 16 February 2015 and the second is the DFAT Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam (LTTE), dated 3 October 2014. In his decision, the delegate states that any relevant country information report prepared by DFAT specifically for the purpose of assessing protection obligations is material which is before him. As such, I consider these two documents were before the delegate at the time of the decision and they are not new information.

22    The delegate’s decision record, which was before the IAA, stated as follow:

MATERIAL BEFORE THE CASE OFFICER

A.    Departmental file [number redacted] relating to the applicant.

B.    Australian case law as footnoted throughout the decision record.

C.    Country information as footnoted throughout the decision record including any relevant country information assessment prepared by the Department of Foreign Affairs and Trade specifically for the purpose of assessing protection obligations (see Direction No.56).

D.    The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Re-issued, Geneva, December 2011 (the UNHCR Handbook).

E.    Procedures Advice Manual 3: Refugee and Humanitarian – Refugee Law Guidelines

F.    Procedures Advice Manual 3: Refugee and Humanitarian – Complementary Protection Guidelines

G.    Procedures Advice Manual 3: Refugee and Humanitarian – Common Processing Guidelines

H.    Procedures Advice Manual 3: Refugee and Humanitarian – Temporary Protection and Fast Track Assessment Process.

23    With reference to item C under the heading “Materials Before the Case Officer”, it was common ground that the DFAT Country Report on Sri Lanka dated 16 February 2015 (the February 2015 DFAT Report) and the DFAT Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam (LTTE) dated 3 October 2014 (together, the contentious reports) were not footnoted by the delegate in the decision record: T 4:26-35.

24    The Minister submitted that the appellant required leave to rely on the proposed ground on the basis that it was not argued in the Court below. He opposed leave being granted because:

(1)    The fact that the appellant was not represented in the Court below is, of itself, insufficient reason to allow a new ground to be raised for the first time on appeal: relying on SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [20] per Lander J;

(2)    The Minister “may have” called evidence in the Court below to meet the argument had it been raised. That evidence might have included what country information was in fact before the delegate, or whether there was any material difference between the country information referred to by the Authority in its decision record at [4] and other country information before the delegate; and

(3)    The proposed ground lacks merit.

25    The Minister relied on the principles discussed by the Full Court in Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52 at [88]-[92]. Those principles are well established and the appellant did not seek to impugn them:

(1)    In the absence of reason to do so, a Court will not allow an appellant to depart from the basis upon which a case has been conducted at first instance: Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481 at 483; Zheng v Cai (2009) 239 CLR 446 at 453; [2009] HCA 52 at [16]; Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391 at 395; [2015] HCA 42 at [18] per Gageler J. To permit the running of new arguments too readily would undermine the appellate process by rendering the hearing at first instance almost irrelevant: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at 629; [2004] FCA 106 at [19] per French J; Prodduturi v Minister for Immigration and Border Protection (2014) 142 ALD 550 at 555; [2014] FCA 624 at [28] per Perram J.

(2)    Nevertheless, there are circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial: see Park v Brothers (2005) 222 ALR 421 at 430; [2005] HCA 73 at [34] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.

(3)    An appellate court retains a discretion to allow a new argument to be raised on appeal where it is expedient in the interests of the administration of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598-599; [2004] FCAFC 158 at [48] per Kiefel, Weinberg and Stone JJ.

(4)    In determining that last question it is relevant to consider whether there was an adequate explanation for why the argument was not raised in the Court below and whether there is evident merit in the proposed new ground.

Was the proposed ground raised in the Federal Circuit Court?

26    In his written submissions at [3], Mr Bodisco submitted that the proposed ground enlivens an issue that had been pleaded in the Federal Circuit Court, albeit that it was put in an unsophisticated way by an unrepresented litigant. He did not identify in the written submissions which of the pleaded grounds the appellant relied on. The pleaded grounds in the Federal Circuit Court were as follows (as written):

Ground-one

The IAA has committed jurisdictional error in my case as it has accepted my central claims of my past adverse experience at the hands of the Sri Lankan security forces but it declined its jurisdiction by failing to find that my fear of persecution is still well-founded. There is independent and reliable country information (E.g. DFAT Report) before the IAA that the circumstances in which I feared to live in Sri Lanka have not materially changed.

Ground-2 and particulars

The IAA’s decision has been affected by a jurisdictional error because the IAA has failed to have regard to the following documents submitted by me to the Immigration. They are:

President of Sri Lanka Mahinda Rajapaksa has written a letter to my father.

The Complaint made to the Human Rights

Sri Lankan Police entry

TMVP’s general secretary has sent me a letter confirming that I had problems in Sri Lanka.

The letter from the Justice of the Peace is confirming the problems to me.

Proof of 200,000.00 salaries earning in Sri Lanka at a Dialog company indicating I am not an economic refugee and had to feel the reasons said in my refugee claims.

The CID is still visiting my home in search of me due to the reasons that my cousins were in the LTTE in a key position and they are still being in search of the Sri Lankan security forces. This was not taken into account by the IAA.

There is independent and reliable evidence before the IAA that I was in the LTTE. The IAA has failed to regard this fact in their decision making.

The new information has annexed with this was not before the IAA but this evidence substantiates my refugee claim and the above said documents before the IAA which were potentially cogent to my refugee claims to fear of my harm in Sri Lanka. The IAA failed to have regard to these documents.

Ground-3

When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me for a hearing/invitation to comment on or respond to the adverse information including the current country information on which it relied to refuse my protection visa application. The IAA must have invited me to provide my comments in writing and/or to appear before the IAA to give evidence and present arguments relating to the issues raised in paragraphs 44 and 45 of the IAA’s decision of 21 September 2016 and relied on this to refuse my protection visa in relation to my referred application with the IAA.

27    In his oral submissions in chief, Mr Bodisco identified ground one as the ground which raised the issue which he now seeks to raise in the amended notice of appeal. He argued that the primary judge mischaracterised and dismissed that ground as seeking “impermissible merits review”.

28    Mr Bodisco submitted that the appellant raised the issue about country information clearly in ground one, by making the point that circumstances had not materially changed. He says that the Federal Circuit Court is not a court of strict pleading and his client had plainly raised his concern that country information had not been dealt with adequately by the IAA. He submitted that the Minister’s barrister is a very experienced counsel and the Federal Circuit Court would be in a position to explore in some detail the issues that were raised about how country information was taken into account by the IAA and what country information it had taken into account. I note that in oral submissions in reply Mr Bodisco suggested that ground two was also relevant. I do not see any basis for that submission because there is no reference in it to country information but rather to a list of documents purporting to support the factual claims that were personal to CYO16, such as his father’s position in the TMVP and the appellant’s claimed links to the LTTE.

29    As noted, the appellant was not represented in the proceedings in the Federal Circuit Court. It appears from the Court file that he did not file any written submissions. The Minister did. The extent of his written submissions in relation to ground one was as follows:

Ground one claims that the Authority accepted the Applicant’s central claims, but as set out above, it did not. It appears to argue with the Authority’s conclusion that the Applicant did not have a well founded fear of harm in Sri Lanka, but the Court cannot review the merits of the Authority’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272. This ground fails.

30    It appears that the primary judge’s reasons were delivered ex tempore. The primary judge set out the grounds of review at J[20]. Otherwise, the parts of the reasons relevant to ground one appear to be as follows:

Information before the Authority

….

7.    The Authority in its decision, on 21 September 2016, identified that it had regard to the material referred to it under s.473CB of the Act. The Authority made express reference to submissions received on behalf of the applicant and that the Authority considered the same not to be new information and had regard to it. The Authority made reference to country information that was before the delegate and found that those documents were not new information.

…

Submissions from the bar table

23.    From the bar table, the applicant repeated the substance of his claims and made assertions that the Authority had not taken into account material that was in the Court book.

24.    There is no basis for finding the Authority failed to have regard to the material to which the Authority referred. In the reasons of the Authority, a number of the documents referred by the applicant were expressly referred to. It was not necessary for the Authority in its reasons to refer to every piece of evidence that was tendered.

25.    The applicant maintained that he had told the truth and that because the decision had failed to accept that Australia owed him a protection obligation, it must be incorrect. In substance, the applicant’s submissions from the bar table invite the Court to engage in impermissible merits review. The Court has no power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground 1

26.    In relation to ground 1, the assertion that the applicant’s central claims were accepted is not correct. The substance of ground 1, in essence, is a disagreement with the Authority’s adverse finding in relation to the applicant not having a well-founded fear.

27.    Ground 1 is, in substance, an invitation to this Court to engage in impermissible merits review. This Court does not have power to make fresh findings of fact. No jurisdictional error is made out by ground 1.

31    It is apparent from the Minister’s submissions to the Federal Circuit Court that he did not apprehend that ground one raised the issue which Mr Bodisco now seeks to ventilate by the proposed ground.

32    It is also not apparent from the primary judge’s reasons that he understood the appellant to be raising that point. The last sentence of J[7] reflects the IAA’s decision record at [4] without comment which would indicate that his Honour did not understand ground one to raise the issue in the proposed ground.

33    The appeal book prepared by the Minister contains the court book from the proceedings in the Federal Circuit Court. At appeal book pages 396-446 (court book 317-367) is an email sent on Sunday, 7 August 2016 to the IAA by Sentil Solicitor and Barrister containing submissions on behalf of the appellant to which are attached copies of the contentious reports. The submissions are (relevantly) as follows (as written):

Dear Honorable Reviewer,

I refer to your acknowledgment of referral of 19 July 2016 to the Visa Applicant.

I forward my written submissions referring reliable country information why the Visa Applicant meets the criteria to grant protection in Australia.

1.    DFAT Thematic Report 3 October 2014

2.    DFAT 16 February 2016

3.    The Visa Applicant’s comments why he begs to disagree with the DIBP’s decision.

I refer to the DFAT reports attached with this submission which contains reliable country information on Sri Lanka which evince that the visa applicant’s refugee claims are consistent with these reliable country information and he was in danger in the past or at the time of departure and still now as his claims in relation to the visa applicant’s fear of persecution as a result of his suspected LTTE activities, his family are high ranking LTTE members, his fear of persecution as a result of his association with the TMVP and failed Tamil asylum seekers from Australia. Therefore, it is humbly submitted that the benefit of doubt should be given to the Visa Applicant.

The Visa Applicant has provided new evidence herewith whioh indicates that his father is a politician and was elected as a TMVP candidate.

The relevant issue is now that what will happen to him if he were to return to Sri Lanka.

I refer to the DFAT Report dated 16 February 2015 which is reliable country information on Sri Lanka evinces that the Visa applicant’s refugee claims are consistent the reliable country information and that Report supports the following. They are:

1.    He cannot relocate to another part of Sri Lanka because the Sri Lankan authorities are in control of all of Sri Lanka now. He fled Sri Lanka by boat and arrived in Australia by boat. He will be questioned at the Colombo airport while checks are undertaken. The Authorities at the airport will notify his return to his home area, his past suspected LTTE activities, his family are high ranking LTTE members and his escape will come to the attention of the authorities. He will be detained for additional questioning and he will be subject to serious harm due to these cumulative basis.

2.    On his arrival at the airport in Colombo, he would be closely scrutinised and questioned by the CID because he is an ethnic Tamil from the east of Sri Lanka where the Sri Lankan security forces were in battle with the LTTE and he has been absent from the country for a significant period of time. It is likely that the Sri Lankan security forces will discover his background including his detentions at the hands of the Sri Lankan security forces and He will be persecuted and prosecuted as well for his illegal departure as a Tamil male from the East with the suspected LTTE profile. There is information before the DIBP that there are potential risks of physical violence in prison.

3.    There is a possibility of interrogation and ill-treatment for him due to his profile than other Tamils returning as failed asylum seekers.

The IAA should consider my client’s claim for complementary protection pursuant to section 36(2) (aa) of the Migration Act 1958 (Cth) as well whether there was a real risk that he would suffer “significant harm” if he were to return to Sri Lanka by reason of the enactment of the Immigrants and Emigrants Act (the I&E Act). As defined in s 36(2A), “significant harm” includes “degrading treatment or punishment” which in turn includes acts that cause, and are intended to cause, “extreme humiliation which is unreasonable”. I contend that the I&E Act causes, and was intended to cause, extreme and unreasonable humiliation in making it an offence punishable by imprisonment of 1-5 years and a fine to depart Sri Lanka otherwise than from an approved port of departure and/or without valid documents.

On the Visa Applicant’s arrival at the airport in Colombo, he would be questioned by the CID and he will be persecuted and prosecuted as well for his illegal departure as a Tamil male from the East with a suspected LTTE profile There is information before the DIBP that there are potential risks of physical violence in prison.

I trust that you will take into account this relevant country information on Sri Lanka when you review this visa application which evinces his subjective and objective fears as he has claimed in his refugee claims.

I trust this review application will be accorded with natural justice.

It is humbly submitted that the above evidence along with his previous information with evidence to DIBP and this information and evidence give credibility to his refugee claims and his ongoing fear of persecution is being well-founded subjectively and objectively by this independent country information.

…

34    It can be seen that the words “reliable country information” used in the 7 August 2016 submission to the IAA are a variant of the words “independent and reliable country information” used by the appellant in ground one. But it is difficult to see that either counsel for the Minister or the primary judge could or should have discerned that the appellant intended to raise the proposed ground merely from that fact. The more natural reading is that the appellant disputed the findings that the IAA had made based on country information in relation to whether or not circumstances in Sri Lanka had materially changed.

35    It can be accepted that where an experienced barrister appears in opposition to an unrepresented litigant, that barrister has a duty to assist the Court to discern the issues that are truly in contention, especially where the barrister represents a party with model litigant obligations. However, the barrister’s duty does not extend to making the self-represented person’s case for them nor does the barrister have to assist the judge hearing the matter by discerning arguments that have not, in fact, been put by the unrepresented litigant.

36    In the absence of a transcript, it cannot be established how the appellant ran his case before the primary judge. While it is true that, at J[23], the primary judge indicates that the appellant referred to documents in the court book, the grounds on which the appellant relied in the Court below expressly referred to a number of documents. There is no basis for finding that the appellant referred to the submissions made by Sentil Solicitor and Barrister on 7 August 2016 or the contentious reports referred to in the IAA’s reasons at [4] in the terms now contended for by Mr Bodisco.

37    In my view, on a fair reading ground one cavils with the IAA’s factual findings. I do not accept that it is a reasonable inference from ground one that the appellant’s case was that the IAA failed to perform the review required by s 473CC by “misdirecting” itself concerning what material was before the delegate when he made his decision. In my view, the proposed ground is a new ground which requires leave, and such leave should only be granted if justice requires it, a matter which turns primarily but not exclusively on the merit of the proposed ground.

38    Before turning to address the appellant’s submissions in more detail below, it is useful to set out relevant provisions of Part 7AA of the Migration Act.

Part 7AA of the Migration Act

39    Relevantly, Divs 2 and 3 of Part 7AA of the Migration Act 1958 (Cth) provide as follows:

Division 2—Referral of fast track reviewable decisions to Immigration Assessment Authority

…

473CB Material to be provided to Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)    refers to the evidence on which those findings were based; and

(iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)    [contact details]

(2)    The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

473CC Review of decision

(1)    The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

 (2)    The Immigration Assessment Authority may:

(a)    affirm the fast track reviewable decision; or

(b)    remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

Division 3—Conduct of review

Subdivision A—Natural justice requirements

473DA Exhaustive statement of natural justice hearing rule

(1)    This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2)    To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

Subdivision B—Review on the papers

473DB Immigration Assessment Authority to review decisions on the papers

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

(2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).

Subdivision C—Additional information

473DC Getting new information

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

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

(b)    the Authority considers may be relevant.

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

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

(a)    in writing; or

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

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.

473DE Certain new information must be given to referred applicant

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

(i)    in writing; or

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

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

 (3)    Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b)    is non-disclosable information; or

(c)    is prescribed by regulation for the purposes of this paragraph.

Note:    Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

Appellant’s submissions concerning the proposed ground

40    With respect, Mr Bodisco’s submissions were often hard to follow. As I understand them, the submissions were:

(1)    Having regard to the IAA’s DR at [4] (quoted at [21] above), the assessor proceeded on the basis that the contentious reports were before the delegate and he accordingly found that they were not “new information”. It might therefore be inferred that the assessor made the assessment on the basis that the delegate had regard to the contentious reports when making findings of fact;

(2)    However, it is clear from item C under the heading “Material Before the Case Officer” in the delegate’s decision record (quoted at [22] above) that the delegate regarded the documents footnoted in the decision record as relevant material before him, but the contentious reports were not footnoted.

(3)    Nonetheless, the contentious reports contained matters of importance to the appellant’s claims. In this regard, CYO16’s written submissions filed in this Court (at [10] and [11]) referred to the following material which is highlighted in bold:

(a)    From the February 2015 DFAT Report at 3.5 and 4.1:

Overall, DFAT assesses that there are currently no official laws or policies that discriminate on the basis of ethnicity or language (‘official discrimination’) including in relation to access to education, employment or access to housing. DFAT further assesses that there is only a low-level of discrimination in the implementation of laws and policies. More generally, there is a moderate level of discrimination between particularly [sic] ethnic groups (‘societal discrimination’), largely as a result of the civil conflict and its causes.

…

Incidents of extra-judicial killing, disappearances and kidnappings for ransom occurred frequently in Sri Lanka during the civil conflict, particularly in the north and east. These were attributed to Sri Lankan security forces, the LTTE and paramilitary groups, although some victims were also killed or abducted in relation to business or personal disputes. DFAT assesses that the number of incidents of extra-judicial killing, disappearances and kidnappings for ransom has fallen considerably since the end of the conflict.

(b)    From the DFAT Thematic Report at 2.25, 3.5, 4.2 and 4.6:

DFAT is aware of but cannot verify cases where close relatives have been arrested and detained because of their family connections with former LTTE members. However, close relatives of the LTTE members who are wanted by Sri Lankan authorities are likely to be subject to monitoring.

…

In the north and east, Sri Lankan security forces maintain a significant presence and a high level of awareness of the civilian populations of the area. …

…

Three Tamil men with alleged connections to the LTTE were shot and killed by the Sri Lankan military conducting a cordon and search operation in Vavuniya District during April 2014. Sri Lankan authorities reportedly retrieved arms, ammunition and explosives from those killed. These were reportedly the first LTTE relate killings since the end of the conflict in 2009.

…

As noted in the October 2014 Country Report on Sri Lanka, there have been credible reports of torture carried out by Sri Lankan security forces, in some cases resulting in death. Reports of torture come from a wide range actors.

(4)    If item C does, on a proper construction, include the contentious reports, then s 473CB(1)(a)(ii) has not been complied with because the delegate’s statement of reasons does not refer to the evidence on which its findings were based.

(5)    If item C is construed as not including the contentious reports (which Mr Bodisco contended was the fair reading), then the reports were not before the delegate and the IAA misdirected itself by believing that they were such that it failed to perform the statutory task of reviewing the fast track decision made by the delegate in accordance with Divs 2 and 3 of Part 7AA.

(6)    If item C is construed as not including the contentious reports, the contentious reports comprised “new information”. The IAA plainly did not consider whether there were “exceptional circumstances” or whether s 473DD(b) was satisfied so as to justify the IAA in considering the contentious reports under s 473DD. The IAA therefore failed to discharge the task of review imposed by s 473DB(1), relying on the decision of White J in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221; [2017] FCA 958 at [36]. If the contentious reports were taken into account, the IAA exceeded its jurisdiction.

(7)    Mr Bodisco conceded that there is nothing in the IAA’s decision record which would indicate that the IAA had taken the content of the contentious reports into account. Counsel submitted that, while the IAA might well have said that it had looked at the contentious reports and come to the view that they had been superseded by other material (for instance, the December 2015 DFAT Report), having regard to the restrictive terms of Divs 2 and 3 of Part 7AA, it would not have performed the task required because it would have had to have taken into account new information that it was not entitled to consider in order to do that.

Consideration

41    While it was common ground between the parties that neither of the contentious reports was “footnoted” in the delegate’s decision record, that position is not correct. The February 2015 DFAT Report is footnoted in the delegate’s decision record at [53] n 28 as follows:

28    It is an offence for a Sri Lankan to depart the country without proper authorisation and they are subject charge under s.45(1)(b) of the Immigration and Emigration Act 1988 (I&E Act) for contravening s.34 (departing Sri Lanka from a place other than an approved port) and s.35(a) (departing the country without a valid passport): DFAT, “DFAT Country Information Report Sri Lanka”, 16 February 2015, CISE96CF1164 at 5.22, 5.23, 5.27-5.29.

42    On that basis, it is clear that the February 2015 DFAT Report was before the delegate and that the IAA was correct in its assessment that it was not “new information”. Further, the IAA’s failure to refer to the February 2015 DFAT Report expressly in its decision record is not, per se, indicative of error: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46] per French, Sackville and Hely JJ.

43    Of course, that is not a complete answer to the proposed ground as there does not appear to be an express reference to the DFAT Thematic Report in the delegate’s decision record. It is notable that the following appears at the commencement of the February 2015 DFAT Report:

1.    Purpose and Scope

1.1    This country report has been prepared by the Department of Foreign Affairs and Trade (DFAT) for protection status determination purposes only. It provides DFAT’s best judgment and assessment at time of writing and is distinct from Australian Government policy with respect to Sri Lanka. The country report replaces the previous DFAT Country Report on Sri Lanka dated 3 October 2014.

1.2    …

1.3    Ministerial Direction Number 56 of 21 June 2013 under s 499 of the Migration Act 1958 states that

Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision-maker is not precluded from considering other relevant information about the country.

1.4    …

1.5    For more information, see the October 2014 DFAT Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam.

44    There is ambiguity in the way item C is framed (see [22] above). Item C is open to the interpretation that the material before the delegate included only footnoted material. However, because of the word “including” and the reference to Ministerial Direction 56 in item C, it is equally open to the interpretation that all relevant DFAT information was before the delegate. Ministerial Direction 56 is set out in the quotation at [43] above.

45    There is no information before the Court concerning how the Secretary provides “review material” (to use the language of s 473CB) in the nature of country information prepared by DFAT to the IAA either generally or in this specific case. The correct interpretation of item C would be assisted by such evidence. I accept the Minister’s submission that the fact that the determination of this issue would be assisted by evidence which is not before the Court is a powerful reason for refusing leave to the appellant to rely on the proposed ground.

46    Even if Mr Bodisco’s is correct that the DFAT Thematic Report was not before the delegate so that the IAA’s finding that it was not “new information” was made in error and it therefore also erred by failing to consider whether that “new information” could be considered having regard to s 473DD, in my view this is not a case where such errors are of such gravity as to be jurisdictional in nature. Even if they could be characterised in that way, in my view, it is not a case where the discretion to quash the decision should be exercised so that justice does not demand that the proposed ground be allowed to be raised for the first time on appeal. That is for the following reasons.

47    First, there is a level of absurdity in the appellant relying on the fact that the IAA did not reject the DFAT Thematic Report on the basis that it was “new information” when it was the appellant who asked for that report to be taken into consideration.

48    Second, no explanation has been offered for why the contentious reports would be more “reliable” country information than the December 2015 DFAT Report. It is true that it is not apparent from the decision record that the IAA considered the DFAT Thematic Report, but that is unsurprising. As is evident from the summary of the IAA’s decision record above, the IAA (in contrast to the delegate) accepted that the appellant had links to two cousins who were LTTE members who disappeared in 2010. It found that neither the appellant nor his family members had suffered harm on that basis since then. Accordingly the IAA did not accept the factual basis on which the appellant claimed that he was exposed to risk because of his claimed links to the LTTE for reasons which appear to have been open to it. It is therefore not apparent that the DFAT Thematic Report had relevance to the particular circumstances of the appellant.

49    Third, it would normally be most appropriate to rely on the most recent DFAT information. This is particularly so in circumstances where the February 2015 DFAT Report was written soon after the Sirisena Government came to power in January 2015. Some of the opinions in that report had a “wait and see” flavour to them in circumstances where there was the suggestion of a developing trend of greater peace and less discrimination directed towards Tamils who did not have links to the LTTE or suspected of having them. It might be expected that the December 2015 DFAT Report would be a better basis on which to assess the risks identified in the appellant’s claim, including the “relevant issue” identified in the 7 August 2016 email from Sentil Solicitor and Barrister of what would happen to the appellant upon his return to Sri Lanka.

50    Fourth, I note that the 7 August 2016 email from Sentil Solicitor and Barrister did not, in terms, refer to the passages of the contentious reports on which Mr Bodisco relied in his submissions. Nonetheless, as is evident from the summary of the IAA’s decision record above, the IAA expressly recognised that Tamils from the east had faced societal and official discrimination and that atrocities had been committed against them in the past, but it also and relevantly dealt with the situation they now faced having regard to DFAT’s more current information in the December 2015 DFAT Report.

51    The December 2015 DFAT Report is not before the Court. It would be appropriate that it be in evidence, as might be expected had the proposed ground been raised in the Court below.

52    In all of these circumstances, the proposed ground lacks merit and the Minister is prejudiced because there clearly are matters on which he might have been able to lead evidence had the proposed ground been raised in the Court below. I note that the proposed ground was raised only in submissions filed five days before the hearing and that afforded little time for evidence to be gathered, served and evaluated. The fact that the appellant was unrepresented in the Court below is an insufficient basis on which to allow the proposed ground to be advanced on appeal for the first time.

Conclusion

53    Leave to rely on the proposed ground should be refused and the appeal should be dismissed with costs.

Associate

Dated:    10 January 2019