FEDERAL COURT OF AUSTRALIA

DOP17 v Minister for Immigration and Border Protection [2019] FCA 129

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be granted.

2.    The appeal be dismissed with costs as assessed or agreed.

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

REASONS FOR JUDGMENT

STEWARD J:

Introduction

1    The applicant is a Sri Lankan Tamil man who arrived in Australia as an unauthorised maritime arrival on 13 October 2013. On 26 February 2016, he applied for a Safe Haven Enterprise Visa (a “SHEV”). This was refused by a delegate of the first respondent (the “Delegate”) on 15 December 2016. That decision was reviewed by the second respondent (the “Authority”), which had written to the applicant giving him an opportunity to submit new information. After the applicant had provided submissions and new information to the Authority, it affirmed the Delegate’s decision on 17 July 2017. The applicant sought judicial review of this decision in the Federal Circuit Court of Australia. That application was dismissed on 15 March 2018. The applicant wishes to appeal that judgment to this Court. He was three days late and seeks an extension of time.

Background

2    The applicant’s claim for protection concerns accusations that he provided facilities to the Liberation Tigers of Tamil Eelam (the “LTTE”) with resulting extortion demands made of him by the Sri Lankan Army and the Tamil paramilitary group called Eelam People’s Democratic Party (the “EPDP”). At [8], the Authority summarised his claims in more detail in the following terms which I adopt:

•    The applicant owned a communications centre business in Mannar, in the Northern Province of Sri Lanka, which provided communication services including call facilities.

•    In February or March 2009 the Sri Lankan Army Intelligence and EPDP paramilitary came to the business and said that the applicant’s facilities had been used for calls related to the LTTE. The applicant was required to go to the army intelligence office for questioning and was accused of providing facilities to the LTTE. He was requested to come to the office again the next day was told that they could drop the case if he gave them 10 lakhs, a large sum of money. He was threatened if he did not pay he would be abducted or the money would be taken from his mother. The applicant refused.

•    From then until he left Sri Lanka in 2012, these people kept coming to the communications centre and the applicant would give them small amounts of money. This happened at least 20 times.

•    The applicant was a member of the [X] Club and funded community projects. The people threatening him knew this and said that he had money for the [X] Club so could also give them money.

•    The people still demanded the 10 lakhs. They would demand money from his wife when he was at work, demand the applicant get money from his father in law, and would come to the applicant’s home at night, intoxicated, to demand money. This impacted the applicant’s mental state and he continues to receive counselling.

•    The applicant could not tell the police or human rights groups as this would have increased the threats.

•    The people telephoned the applicant and threatened that if he did not pay by a certain date, they would abduct him in a white van and his family would not live. He had heard of business men being abducted and killed. The applicant decided to leave the country.

•    He travelled to Malaysia on 10 January 2012, leaving his brother in charge of the call centre. The harassment continued and his brother only kept the centre open for two months.

•    The applicant went to Indonesia from Malaysia, where he registered with the United Nations High Commissioner for Refugees (UNHCR). He later travelled to Australia by boat, arriving in October 2012.

•    Since his departure, the applicant’s wife has told him that people are still searching for him and have gone to his mother’s house. Army Intelligence and EPDP have approached his wife, mother and father in law demanding to know where he is. His wife has had to change her telephone number and close her beauty parlour because of this. They have threatened to abduct the applicant’s daughter if his wife does not pay. They have said they know the applicant is in Australia.

•    The applicant fears serious harm including arrest, detention and torture at the hands of Army Intelligence and the EPDP because of his alleged links with the LTTE based on the phone call. He fears that he will be abducted because he did not heed their warnings or meet their deadline. As he fears this harm from the authorities he will not be protected by them, nor can he move elsewhere in Sri Lanka.

3    The Delegate, for the purposes of considering the application for a SHEV, accepted that the applicant had faced harassment and extortion in 2009 but did not accept that in 2012 he was threatened with abduction or had been subject to any serious ongoing threats. Relying on country information, the Delegate concluded that the applicant would not be exposed to a real risk of significant harm if returned to Sri Lanka for the purposes of ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”).

Proceedings before the Authority

4    As already mentioned, the Authority received a submission from the applicant. This contained a report from the United Nations Committee Against Torture concerning Sri Lanka. This was received as “new information” which satisfied the requirements of s 473DD of the Act. It took the submissions and this information into consideration. It also had regard to the most recent assessment of the situation in Sri Lanka as prepared by the Department of Foreign Affairs and Trade (“DFAT”). It invited the applicant to comment on that report. His representative made submissions which again contained new information which the Authority took into account because s 473DD was satisfied. On the same basis, it also took into account an unsigned statement of the applicant’s wife taken over the telephone by the applicant’s representative. It was in these relevant terms:

…

I am providing this statement over the telephone [phone number] to Ms [x] from Refugee Advice Casework Service.

I am providing this statement in relation to events which have occurred to me in 2017.

On April 7 2017 in the evening, men from the [Criminal Investigation Department (the “CID”)] come to my house and asked about my husband. I said he is not here and I locked the door.

Later my mother-in-law called me to say that the CID had come to her house and they asked about my husband. My mother-in-law said that she told the CID that her son is not at home and they replied that they knew he is not in Sri Lanka. My mother in law said that CID told her that they know he is in Australia and he should return home. My mother in law told me that the CID said that they have a person in custody who identified my husband as assisting the [Liberation Tigers of Tamil Eelam (the “LTTE”)]. The CID told my mother in law that they wanted her to call my husband. I am not sure if the CID have called my husband in Australia.

I was very worried for my daughter and scared as so I reported it to the Mannar Citizen Committee. I was scared to the report to the police as they are linked to the CID and if I complained to them I was scared I would be asked to go for an inquiry with the police. I feared I would be harmed if this happened and I have a daughter to take care of.

(Errors in the original.)

5    In January 2017, the applicant made a request of the Authority that he be given the opportunity to respond to any adverse credibility or plausibility findings at a hearing at which he should be invited to attend. The Authority did not grant this request. It said at [7]:

Section 473DC of the Act provides that while the [Immigration Assessment Authority (the “IAA”)] may get any information not before the Minister and which it considers relevant, it does not have a duty to get, request, or accept new information. Subject to the requirements of the Act, the IAA must review a decision by considering the review material without interviewing the referred applicant and, other than in exceptional circumstances, must not consider new information: ss.473DB(1)(b) and 473DD. I have decided in the circumstances of this case not to invite the applicant to provide any response or information beyond the invitation I have issued above.

6    Having regard to the confined nature of the two proposed grounds of appeal, it is unnecessary for me to summarise the decision of the Authority in any great detail. It affirmed the Delegate’s decision. It accepted that the applicant had been threatened in 2009 by the Sri Lankan authorities. It also accepted that he had been threatened in 2012, but found that on this occasion the harassment was financially motivated. It decided that the Sri Lankan authorities and other groups such as the EPDP did not believe the applicant to be a supporter of the LTTE after 2009 and that, accordingly, it found that he was not of adverse interest or suspicion to those authorities at the time of his departure. I shall return to these findings in more detail below. Having regard to the country information, it concluded at [32]:

Considering the above matters as a whole, I am not satisfied there is a real chance of the applicant being seriously harmed because of his ethnicity, alleged LTTE association, past extortion or failure to meet the extortion demands imputed pro-LTTE political opinion, perceived wealth (including as a returnee from Australia), membership of a particular social group of wealthy Tamil business owner imputed to have provided services to the LTTE or any combination of these factors.

It also considered whether the applicant would be exposed to a real chance of harm by reason of him having claimed asylum in Australia. It concluded that he would not be detained, prosecuted, punished or otherwise harmed because he fled Sri Lanka illegally.

7    For these reasons the applicant’s claims did not satisfy the requirements of s 36(2)(a) of the Act.

8    The Authority also considered the applicability of s 36(2)(aa) and found that there were not substantial grounds for believing that there was real risk that the applicant would suffer significant harm if returned to Sri Lanka.

Proceedings before the Federal Circuit Court

9    The applicant was represented below, as he was before me, by Mr Chia of counsel. The two grounds of review relied upon by the applicant below were in these terms:

1.    The second respondent (Authority) asked itself the wrong question and thereby constructively failed to exercise it jurisdiction.

Particulars

The Authority held that in Sri Lanka, between 2009 and 2012, the applicant had modified his conduct by making payments to Sri Lankan Army intelligence and EPDP paramilitaries. In finding that it was not satisfied the applicant faced a real chance of serious harm, the Authority relied in whole or in part upon the fact that “threats were not carried out” without considering whether the applicant had modified his conduct due to well-founded fear of harm.

2.    Further or in the alternative, the Authority at [7] either misconstrued and misapplied the requirements of section 473DD of the Act or the exercise of its discretion under subsection 473DC(3) was legally unreasonable.

Particulars

The Authority failed to consider whether “information ... proposed to be given” to it satisfied the requirements of paragraph 473DD(b) of the Act.

In the alternative, the exercise of the Authority’s discretion not to conduct a hearing lacked any evident and intelligible justification.

(Errors in the original.)

10    The essence of ground one was that the Authority had erred in assessing the risk of harm to the applicant based upon a finding that he could avoid harm from extortion by making a payment of money. This is what the applicant had done in the past on at least 20 occasions. This ground relied squarely upon the decision of the plurality in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, in particular the reasons of McHugh and Kirby JJ. This ground was rejected by the primary judge, without referring to Appellant S395, in the following terms at [32]-[33]:

On the face of the material before the Court, the Authority correctly identified the relevant law. The Authority’s reasons did not proceed on the basis, or suggest that the applicant could act to avoid harm in the future. Rather, the Authority found there is not a real chance that such harm would occur.

The Court does not accept that the Authority asked itself the wrong question or constructively failed to exercise its jurisdiction in making adverse findings in respect of the applicant’s claims. The adverse findings were open and cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in ground 1 is made out.

11    Ground two contended that the Authority had acted unreasonably in not granting the applicant a hearing following his request for one in January 2017. It had also acted unreasonably, it was submitted, in not considering whether it should exercise its power to obtain further information from the applicant at a hearing in relation to the claims made by the applicant’s wife in her unsworn statement. This ground was also rejected by the primary judge in the following terms at [42]:

The Authority referred to the circumstances of the present case and was not satisfied that this was a case where the applicant should be invited to give oral or written information beyond the opportunity that the applicant had already had in relation to the DFAT country report. The Authority’s reasons cannot be said to lack an evident and intelligible justification. The Authority’s … evaluative judgment under s 473DC of the Act was not legally unreasonable and was eminently justified by the reasons it gave. No jurisdictional error as alleged in ground 2 is made out.

The Application for an Extension of Time

12    The parties were informed by the Court that the application for the extension of time and any resulting appeal would be heard at the same time. That is because the first respondent submitted that the only reason for refusing an extension would be a consideration of the merits of the applicant’s proposed appeal.

13    The applicant filed and served an affidavit which explained the reason for his delay in these terms:

On 11 May 2018, I attempted to file a Notice of Appeal from the Federal Circuit Court of Australia, appealing from the decision of Judge Street on 20 April 2018, at the registry. However the registry would not let me file the appeal because I could not pay the filing fee of $4325 and did not approve my application for exemption.

…

Over the weekend, I asked my friends to lend me the money and I am now respectfully seeking to file my appeal.

14    Section 477A of the Act provides:

(1)    An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

…

15    In exercising the discretion conferred by s 477A(2), in an application for an extension of time, factors to take into account are the extent of the delay, any prejudice the respondent might suffer because of the delay, the explanation for the delay and the merits of the proposed appeal: Singh v Minister for Immigration and Border Protection [2017] FCA 150 at [19]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

16    In my view, an extension of time within which to file a notice of appeal should be granted in this matter. The delay was minimal, and the explanation for it entirely credible. The first respondent, properly, did not allege prejudice. This left a consideration of the merits of the proposed grounds of appeal, which must be assessed in an impressionistic way: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585. It was clear to me that the two grounds of appeal relied upon by the applicant raised difficult issues of law which amply justified consideration by an appellate court. That can be seen from the Court’s consideration of those grounds, which is set out below.

The Appeal

17    The proposed grounds of appeal were the same grounds pursued below. They were expressed in the following way:

1.    His Honour erred in not finding, and ought to have found, that the Second Respondent asked itself the wrong question and constructively failed to exercise its jurisdiction when considering whether the Appellant could be subjected to extortion by the Sri Lankan Army and EPDP paramilitaries.

2.    Further or in the alternative, his Honour erred in not finding, and ought to have found, that the Second Respondent’s exercise of discretion not to invite the Appellant to give “new information” was legally unreasonable.

Ground One

18    In Appellant S395, two Bangladeshi men claimed, for the purposes of seeking protection visas, to have a well-founded fear of persecution in Bangladesh by reason of their homosexuality. The Refugee Review Tribunal, in assessing risk, accepted that it was not possible to live “openly” as a homosexual in that country, but found that the appellants had in the past conducted themselves “in a discreet manner”, and there was no reason to suppose that they would not continue to do so if they were returned to their home. The plurality held that the Tribunal had erred in assessing risk in that way. Asylum seekers were not required to take reasonable steps to avoid harm, and the issue of risk should not be ascertained in that way. This expression of principle has since been altered by s 5J(3) of the Act. The first respondent did not contend, however, that that provision applied to the facts here.

19    The applicant placed particular emphasis on the following passage (at [43]) in the reasons of McHugh and Kirby JJ:

The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

20    It was said by Mr Chia that the joint judgment of Gummow and Hayne JJ was to similar effect, especially at [80]-[81]. This was not disputed by counsel for the first respondent. Subsequently, in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317, Appellant S395 was explained by French CJ, Hayne, Kiefel and Keane JJ in the following way at [17]:

The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed – whether the fear of persecution was well founded – had not been addressed.

(Footnote omitted.)

21    Mr Chia submitted that one of the reasons relied upon by the Authority in assessing the risk of harm to the applicant was the fact that the applicant had modified his behaviour when extorted by making payments of money. By these means he avoided harm. Mr Chia emphasised the following paragraph in the reasons of the Authority at [25]:

I accept that the threats and harassment experienced by the applicant and his family were no doubt extremely frightening and distressing, particularly in the context of abductions and killings occurring in Sri Lanka at that time. I accept that these matters have impacted the applicant’s mental health, as he claims, and that at the time of his departure from Sri Lanka he genuinely believed he would imminently be seriously harmed or killed, and continues to hold that belief. However, such threats were made against the applicant and he was extorted over a number of years without making the full payment requested and without those threats being acted upon. The applicant’s statement indicates that in the final warning, in addition to threats to himself he was told that if he did not pay, his family would not live. The most recent specific incident he has referred to following his departure was that in 2014 when his wife and daughter were threatened. Again, however, these threats were not carried out, and although the applicant said that his wife closed her business and changed her phone number, his evidence was that the extorters knew where she lived.

Mr Chia submitted that the fact that the threats were not “acted upon” because of the payments the applicant had made contributed to the following critical finding at [29]:

The recent information suggests at the very least a decrease in incidents of extortion and abductions, and where it does occur, it tends to be related to alleged LTTE links. Although I have accepted that the applicant was targeted in the past for that reason, I do not accept he is a person of any actual suspicion or adverse interest to the Sri Lankan authorities or has been at any time since 2009. Considering this, together with the length of time since that has now passed since the applicant’s departure and even the 2014 demands on his wife, the decrease in paramilitary activity and abductions and kidnapping, and improved security situation generally, I am not satisfied there is real chance of the applicant again being targeted for extortion, abduction or other harm by paramilitary groups or the Sri Lankan authorities.

There was a dispute before me as to how I was to read the last sentence of this paragraph. Mr Chia submitted that the phrase “extortion, abduction or other harm” should be read as a finding about different species of harm, and that when fairly read, the Authority’s findings at [25], supra, contributed to it deciding that the applicant would not be harmed if extorted in the future.

22    Mr Reilly of counsel, who appeared for the first respondent, did not agree with that construction. He submitted that the Authority had found that the applicant would not be exposed to the risk of extortion, simpliciter, and that it followed from that finding that he was not at risk of being harmed. His past conduct in avoiding harm was irrelevant because the Authority had decided that there was no longer a real chance that the applicant would be extorted in the future, if returned to Sri Lanka. The position in the country had relevantly changed.

23    In my view, a fair reading of the Authority’s reasons bears out Mr Reilly’s submission. For that purpose I must set out that reasoning more fully. The Authority said at [26]-[28] as follows:

26.    More significantly, the country information before me suggests a change in the situation in Sri Lanka since the applicant’s departure and particularly since the election of the Sirisena government in 2015. The Sirisena government has prioritised human rights and reconciliation and has made significant progress, including replacing military governors in the Northern and Eastern Provinces with civilians; returning some land held by the military; releasing some individuals held under the Prevention of Terrorism Act (PTA); committing to reform the PTA; engaging constructively with the UN; as well as a number of symbolic changes, although as the submissions to the IAA indicate, the government has been criticised for a lack of progress including its failure to repeal the PTA.

27.    Since the conflict ended in 2009, DFAT assesses that the security situation in Sri Lanka has greatly improved and the situation in the north has improved dramatically. Whereas even after the conflict there were frequent incidents of killings, disappearances and kidnappings for ransom carried out by groups including the security forces and paramilitary groups, DFAT assesses that the number of incidents of extra-judicial killing, disappearances and abductions for ransom has significantly reduced. After a history of enforced disappearances occurring in a systemic way, disappearances are no longer a common occurrence. A DFAT report in late 2015 indicated that paramilitary groups including the EPDP had renounced their paramilitary activities, but that DFAT was aware of credible reports that such groups continued to be active, including engaging in criminal activity. However, DFAT’s most recent January 2017 assessment makes no mention of any such reports.

28.    As the submissions to the delegate acknowledge, the EPDP was associated with the former Rajapaksa government, but it is submitted that the election of the new government has not led to a cessation in their activity. I accept on the sources cited in the submissions and other material before me that there have been continued reports of paramilitary activity and white van abductions. Similarly, the EPDP are reported to have continued involvement in brokering ransoms for release from detention during 2015. There is also information more generally that despite the government’s change in focus and movement towards reconciliation, there continue to be reports of persons being monitored, detained, tortured and even killed on the basis of past LTTE involvement, including persons suspected of low level links. The [United Nations Committee Against Torture’s] report and other sources cited in the submission refer to white van abductions occurring up to and during 2015, and being based on suspected links, albeit remote, with the LTTE. A report of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment in 2016, also cited in the submissions, refers to continued reports of abductions. However, the report indicates these have decreased compared to the past and the UK Home Office has similarly stated that white van abductions are now seldom reported. While the May 2017 submissions to the IAA indicate that close ties between paramilitary and government security forces remain, the information they cite in support of continued paramilitary activity dates from 2012 and 2014.

(Footnotes omitted.)

These paragraphs summarise country information which supports the finding at the commencement of [29] that there has been “at the very least a decrease in incidents of extortion” and that where such extortion does occur it tends to be related to alleged LTTE links. The phrase at [29], “[c]onsidering this”, is a reference to this finding. It is not a reference to the applicant’s past conduct of avoiding harm from extortion. That conclusion is supported by the content of [26]-[28] which is directed at assessing the likelihood of extortions being committed in the future. It follows, and with respect to Mr Chia, that the better view is that the Authority made a finding in the last sentence of [29] that the applicant would, if returned to Sri Lanka, not be exposed to a real chance of being extorted, because of the reduction in extortions taking place in Sri Lanka. It was on that basis that the risk of harm was judged. It was not based on the proposition that the applicant could avoid harm by making a payment when extorted.

24    For these reasons ground one is rejected.

Ground Two

25    In order to consider ground two, the relevant legislative regime should be set out. Subdiv C of in Pt 7AA of the Act is in these terms:

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.

473DF Invitation to give new information or comments in writing or at interview

(1)    This section applies if a referred applicant is:

(a)    invited under section 473DC to give new information in writing or at an interview; or

(b)    invited under section 473DE to give comments on new information in writing or at an interview.

(2)    The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.

(3)    The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.

(4)    If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:

(a)    without taking any further action to get the information or the referred applicant’s comments on the information; or

(b)    without taking any further action to allow or enable the referred applicant to take part in a further interview.

Section 473DB is also relevant and is in these terms:

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.

26    Mr Chia’s submission was that the Authority had acted legally unreasonably in either not inviting the applicant to give evidence at a hearing or in not considering whether it should exercise its power in s 473DC(3). Before me, my impression is that this was mostly because of the acceptance as “new information” of the wife’s unsworn statement. This should have, according to Mr Chia, prompted the Authority to obtain further details from the applicant about the incident alleged by the wife. The Authority addressed that statement at [24] in the following terms:

While I accept, as claimed by the applicant consistently in his arrival interview and current application, there were inquiries and threats to his wife after his departure, I have some doubt over the 2017 incident claimed in the statement of the applicant’s wife. Firstly, this event is said to have occurred in early April, but the information was only given to the IAA in late May. The claim is new and significant: a person had identified the applicant as having assisted the LTTE and the CID were asking about him for this reason. I find it difficult to accept that if this were true, the information would not have been provided to the IAA earlier, such as in the response to the IAA’s invitation to comment submitted on 15 May, or even prior to that time. Secondly, the applicant claims no connection to the LTTE and no such allegations were previously made against him other than those in 2009. The claim is reminiscent of the earlier accusations against the applicant and I find it highly coincidental that what appear to be new allegations would be made against the applicant some five years after his departure from Sri Lanka and following the refusal of his protection visa. Further, the statement is vague, saying only that the CID asked about the applicant and were advised he was not home but as, on the evidence in the statement, the CID were already aware of his whereabouts, it is difficult to understand the utility of these alleged CID visits. In addition, while not entirely implausible, the apparent interest in the applicant eight years after the end of the Sri Lankan civil war because of alleged past assistance to the LTTE is contrary to country information indicating that the focus of the Sri Lankan authorities is on preventing the re-emergence of Tamil separatism. Considering these matters together, I am not satisfied that the applicant has been identified as having assisted the LTTE or that his wife or mother was visited by the CID in April 2017.

(Footnote omitted.)

27    Mr Chia relied upon the decision of the Full Court of this Court in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475. In that case the Authority affirmed a delegate’s decision to refuse to grant a visa but on different grounds. It decided that the applicant in that case would not face a real risk of serious harm if returned to Beirut, as distinct from other areas of Lebanon. The Full Court decided that the Authority had acted legally unreasonably in failing to consider whether the applicant should have been given an effective opportunity to address the issue of internal relocation to Beirut. The Court said at [81]-[82]:

We do not accept the Minister’s submission that where there is a new situation in the referred applicant’s country of nationality, or if new information were obtained that meant there was a complete change of circumstances in the referred applicant’s country of nationality after the delegate’s decision, there was no obligation on the Authority to consider whether to bring it to the referred applicant’s attention. We understood this submission to mean that those circumstances could not give rise to legal unreasonableness.

Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

28    The obligation to exercise a power within the bounds of reasonableness is an implied limitation drawn by the Court from a construction of the applicable power conferred by Parliament. That the power conferred by s 473DC(3) (and s 473DC(1)) should, if exercised, be exercised reasonably, is not doubted: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 at [21]. Different considerations might have arisen in relation to the proposition that a decision maker must also consider whether or not to exercise that power reasonably. That is so for two reasons. First, the terms of s 473DC(2), on one view, make that implied limitation more difficult to draw. If the Authority is under no “duty” to get “new information”, why is it necessary to imply a requirement that the issue of the consideration of whether to exercise the power (as distinct from its exercise) be subject to a limitation of legal reasonableness? That difficulty is, however, foreclosed by what was said by the Full Court of this Court in CRY16 at [72]. Secondly, what does it mean to observe that the consideration of whether or not to exercise a power must be undertaken in a legally reasonable way? Legal reasonableness usually informs the active exercise of a power. Suffice to say, a mistaken or wrongful failure to exercise a power, simpliciter, would not be sufficient to demonstrate the presence of jurisdictional error. More would be needed. For the reasons expressed below, because the Authority did consider the exercise of its powers in s 473DC, the second difficulty need not be considered further.

29    Mr Reilly submitted that the applicant’s submission was contrary to the statutory scheme of Pt 7AA of the Act, in particular s 473DB, and that CRY16 was distinguishable. This is not a case, he submitted, where the Authority had relied on a new finding unknown to the applicant. Rather, this was a case where the Authority had regard only to information which was known to the applicant. This included the wife’s statement that he had provided. For that purpose, Mr Reilly relied upon DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12. In that case, the Authority affirmed the decision of the delegate to refuse the grant of a visa, but again based upon different findings. It was contended by the applicant in that case that it was legally unreasonable for the Authority to have failed to have exercised its power under s 473DC(3) to have invited the applicant in that case to comment upon the new findings. This contention was rejected by the Full Court of this Court. Reeves, Robertson and Rangiah JJ commenced their analysis with the following observations about Pt 7AA at [69]:

In our opinion, the starting point for analysis is not the different regime under Pt 7 and the cases decided in relation to those statutory provisions. Instead, the starting point must be the terms of Pt 7AA and, subject to Pt 7AA, the obligation on the Authority to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1). Also, by s 473DA, Div 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. In our view, SZBEL [(2006) 228 CLR 152] is not the appropriate starting point.

30    The Court then distinguished CRY16 in the following terms at [70]:

It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3).

31    In DGZ16 the Authority “reassessed” the material which the delegate had considered. This did not, however, oblige it to invite the appellant in that case to comment upon that reassessment. The Court said at [72]-[76]:

72    In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

73    We would not however approach the resolution of the appeal by considering whether or not the delegate’s decision indicated that all aspects of the appellant’s credit were at issue in the Authority’s review. That is to view the procedure through a natural justice lens.

74    We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.

75    There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.

76    It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.

32    The first respondent submitted that the Authority had not acted unreasonably:

(a)    in not acceding to the applicant’s request made in January 2017 that he be given an opportunity to respond to any adverse credibility or plausibility findings; and

(b)    in rejecting the probative value of the unsworn statement at [24], supra.

I agree with each submission. As to the first request – only faintly pressed before me – it was addressed by the Authority at [7], set out above at [5]. In that paragraph the applicant’s request was denied because of the statutory scheme created by Pt 7AA and, in particular, ss 473DB and 473DD of the Act. That decision was not arbitrary or capricious or devoid of logical reasoning. In my view, requests of the kind made by the applicant in January 2017 should not be permitted to undo the statutory scheme of Pt 7AA. Without more, they do not impose any obligation on the Authority to invite an applicant to a hearing. What was said at [7] also shows that in this matter the Authority did consider whether to exercise its powers in s 473DC.

33    As to the second contention, Mr Chia did not contend that the reasoning contained in [24] was itself legally unreasonable. He did not appear to attack the Authority’s rejection of the probative value of the unsworn statement. Rather, he submitted that its probative weight should not have been measured without first asking the applicant to comment upon the concerns the Authority had with it. With respect, I reject that submission. In the first instance, it is unlikely that the applicant himself was in a position to give reliable evidence in support of an event concerning his wife which he had not witnessed. Whilst the Authority is free to consider hearsay evidence, and does so regularly, in relation to a specific alleged event, hearsay evidence would unlikely have been greatly probative. In that respect, what the applicant might have said was not identified: cf Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [26]. Secondly, the concerns expressed by the Authority about the statement, such as its vagueness and its timing, constituted the Authority taking a “different view” of the evidence which was “adverse to the referred applicant”, to use the language of DGZ16. Reservations of this kind need not be put to the applicant for comment under the statutory scheme of Pt 7AA. In my view, for these reasons, the Authority did not act in a legally unreasonable way in not giving the applicant an opportunity to comment upon its concerns with the unsworn statement given the particular statutory scheme contained in Pt 7AA.

34    The second ground is rejected.

35    The application for an extension of time should be granted, but the resulting appeal should be dismissed with costs as assessed or agreed.

Associate:

Dated:    20 February 2019