FEDERAL COURT OF AUSTRALIA

BRZ17 v Minister for Immigration and Border Protection [2019] FCA 677

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of Sri Lanka of Tamil ethnicity, appeals from a judgment of the Federal Circuit Court of Australia. The Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (the IAA) pursuant to Pt 7AA of the Migration Act 1958 (Cth). The IAA decided to affirm a decision of a delegate of the first respondent (the Minister) not to grant the appellant a Safe Haven Enterprise Visa (SHEV).

2    The appellant relies on three grounds of appeal. One of these grounds includes a contention that the IAA acted in a manner that was legally unreasonable in that it did not exercise the power in s 473DC(3) to invite the appellant to attend an interview. The context for this ground includes a submission to the IAA by the appellant’s then representative requesting that the appellant be given a hearing.

3    For the reasons set out below, the appeal is to be dismissed.

Background

4    The following statement of the background facts is substantially based on the reasons for judgment of the primary judge (the Reasons).

5    The appellant is a citizen of Sri Lanka. He was born in Jaffna in the northern province of Sri Lanka and is of Tamil ethnicity. On 14 October 2012, he arrived in Australia as an irregular maritime arrival.

6    On 5 January 2013, the appellant was interviewed by an officer of the Department of Immigration and Citizenship (as it then was) (the entry interview). A copy of a form relating to this interview is included in the Appeal Book. The form is headed “Irregular Maritime Arrival Entry Interview”. It indicates that the interview occupied approximately 1 hour and 15 minutes. The first page of the form includes a section headed “Important Information”, comprising a series of paragraphs. The first two paragraphs were as follows:

I need information about you and your arrival in Australia. This interview will be recorded. This interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have.

You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.

7    The balance of the form comprised a series of questions followed by boxes or fields for answers to be inserted. These have been completed; the responses have been typed into the form (rather than handwritten). The completed form is 16 pages in length.

8    Question 1 in Part C of the form was: “Why did you leave your country of nationality (country of residence)?”. The following was recorded in the field immediately after this question:

tell me what happened to your personally to make you leave Sri Lanka?

there was no problem after we went back to our village after the war. we had shelter and i started studying, each Sunday we had to attend a CID meeting. it was a must that we went. we went to take licence, they threatened us that if we stand in a group we will shoot you. i got my licence. Other people are being abducted in the white van. many people are having problems that is why i came. has anything happened to you recently? if i want to go to Jaffna and study i can not study, they will come and watch us. who is they? CID and the army. why would they do that? they are watching the young people they are going to do something. have they stopped you from doing anything else? no. when did they threaten to shoot you? 04/2012. where were you? in my village at the junction. what licence were you getting? car licence. explain to me why they would shoot you if you stand in groups? i do not know we just standing there to learn driving.

are there any other reasons you left Sri Lanka? no.

my next lot of questions require a yes or no answer and if i need more information i will ask for it

Question 6(a) in Part C of the form was: “Were you ever arrested or detained by the police or security organisations?” The response to this question is recorded as “No”.

9    The appellant was invited to make an application for a SHEV. He lodged an application for this visa on 11 April 2016. In his application he claimed to fear harm on the basis of his Tamil ethnicity, and because he would be imputed with the profile of a Liberation Tigers of Tamil Eelam (LTTE) supporter. The appellant provided a statutory declaration in support of his SHEV application.

10    On 26 September 2016, the appellant attended a visa interview with a delegate of the Minister (the visa interview). The appellant’s claims for protection were based on the following information, which was provided in the statutory declaration and during the visa interview (as accurately set out in the Minister’s submissions filed in the Federal Circuit Court):

4.1    From a young age, he was taught Scouts by members of the LTTE. He learnt various skills including medical and first aid skills. In 2007, when he was 14, he finished his scouts training and became a Scouts leader.

4.2    His family was displaced between December 2007 and November 2009 due to the civil conflict. During the conflict he gave medical care to injured people – both in the army and the LTTE.

4.3    After returning home in November 2009, he continued with his education.

4.4    In 2010, he completed a 3-month residential course in agriculture with the Sevalanka Foundation.

4.5    In 2010, he was questioned by Criminal Investigation Department (CID) officers on three different occasions about whether he was involved with the LTTE. On the first occasion he was spoken to when he had finished playing sports. He took the conversation as a warning that the CID were watching him. On the second occasion, he was on his way to the sports ground when the CID diverted him, questioned him for about an hour about the LTTE, and then released him. On the third occasion, CID officers blind-folded him and took him in a white van where he was questioned about the LTTE and his involvement with the Scouts. On this occasion he was also beaten.

4.6    In March 2011, a CID officer asked the applicant about his Scouts training. Two weeks later, he was interrogated and beaten by the CID. On this occasion, he revealed that he had been taught Scouts by an LTTE member.

4.7    In May 2011, while applying for a driver’s licence, the applicant was approached by army officers in a patrol car. The applicant was taken to an office nearby, questioned and beaten. He was released after 3 or 4 hours through the intervention of Ms Jenna from the Sevalanka Foundation.

4.8    Six days later, he encountered the CID. He was told by the CID to go to the police station where he was questioned about his encounter with the army and intervention by Ms Jenna. He was beaten, and a bag was placed over his head. When he was released, he was told to report to them if he was going to travel.

4.9    In 2012, he befriended a person called Suri who he later found out worked with the CID. In September 2012, Suri told him that he was being transferred to another area and advised him to leave as the CID might shoot or kill him.

4.10    On 16 September 2012, the applicant left Sri Lanka illegally by boat. The applicant’s family are still questioned on occasion about the applicant’s whereabouts.

11    During the course of the visa interview, the delegate put relevant country information to the appellant for his comment. This included a report from the Department of Foreign Affairs and Trade (DFAT) dated 18 December 2015, which advised that the security situation in the north and east of Sri Lanka had greatly improved since the end of the military conflict.

12    The country information put to the appellant included the UNHCR Guidelines 2012, which advised that there was no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity. It also included a UK Home Office report on Tamil separatism in Sri Lanka dated 19 May 2016, which included statements to the effect that, in general, a person who evidences past membership or connection to the LTTE would not warrant international protection unless they have, or are perceived to have, a significant role in relation to post-conflict Tamil separatism or appear on a ‘stop’ list at the airport.

13    In a letter dated 5 October 2016, the delegate advised the appellant, in accordance with s 57 of the Migration Act, that information had been received that the delegate considered would be the reason, or a part of the reason, for refusing to grant the appellant a SHEV. That information concerned inconsistencies in claims/information provided to the Department of Immigration and Border Protection (the Department) by the appellant during his entry interview on 5 January 2013 and his visa interview on 26 September 2016. The appellant was advised that this information may lead to an adverse credibility finding that may result in refusal of his application, and he was invited to provide comment on the information.

14    On 5 November 2016, the appellant’s agent emailed to the Department: a statutory declaration made by the appellant on 7 October 2016; a letter from Dr Roy Nallaratnam dated 22 October 2016; and a post-interview submission dated 4 November 2016.

15    On 1 February 2017, the delegate refused to grant the appellant a SHEV. In the decision record of the same date, the delegate set out the appellant’s claims, the delegate’s findings of facts, which included reference to relevant country information, and the delegate’s assessment of the refugee and complementary protection criteria. The delegate was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed to Sri Lanka there was a real risk of him suffering significant harm as defined in s 36(2)(a) of the Migration Act. The delegate was not satisfied that the appellant was a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a), nor was the delegate satisfied that the appellant was a person in respect of whom Australia had protection obligations as outlined in s 36(2)(aa).

16    The delegate noted that the appellant’s agent, in her submission dated 4 November 2016, made submissions in relation to the entry interview. Among other things, the agent had submitted that the appellant was not told the purpose of the entry interview, was told to provide a summarised version of his claims and specifically told not to mention anything that occurred prior to 2012.

17    The delegate stated that she had considered both the appellant’s and his agent’s responses to the delegate’s concerns regarding the omission of information provided at the entry interview. The delegate stated:

I acknowledge that the entry interviewing officer had advised the applicant to provide short responses to allow interpreting and note taking easier and that the applicant was advised he did not have to provide all of his claims at the entry interview. I do not expect an applicant to remember and provide every relevant detail at the entry interview however I consider it reasonable that when the applicant was asked to provide the reason as to why he departed Sri Lanka that he would have provided a response that indicated that he personally had experienced problems with the authorities, if this had actually been the case. Instead the applicant provided a response, stated above, which failed to give any indication that he personally had been having any problems with any authority in Sri Lanka. He stated he had got his licence and that they threatened us that if we stand in a group we will shoot you … Other people are being abducted in the white van, many people are having problems that is why I came. However when the entry interviewing officer asked if there had been any further issue, the answer was no. Yet in his TPV interview the applicant raised the same incident and went on to advise that he had been taken at gun point to a room, beaten and detained.

Furthermore the applicant was asked some very direct questions regarding any involvement with any party or organisation, whether he had ever been arrested etc, to which he replied no to all questions. Given that the applicant claimed at his TPV interview that he had been arrested, beaten and detained by both the police and army and approached on a number of occasions by CID officers, I would have expected that there was some indication provided at the entry interview indicating he had been subjected to arrests, questioning and detentions at some point in Sri Lanka. To be asked if he had ever been arrested and the reply was no does not convince me that he is now been truthful at his TPV interview and has only raised doubts in my mind regarding the genuineness of his claims. I have reviewed the entry interview yet again and am satisfied that the interviewing officer afforded the applicant every opportunity to provide further details regarding any of the issues he had with either the police, army or CID. The issue for me is not that the applicant did not provide a full account of his claims at the 5 January 2013 interview, but rather that the applicant did not provide any details of having been personally affected.

(Errors in original.)

18    On 6 February 2017, the delegate’s decision was referred to the IAA pursuant to s 473CA of the Migration Act.

19    On 27 February 2017, the appellant’s representative made a submission to the IAA on the appellant’s behalf. The submission contained: legal and factual argument on the delegate’s decision with references to extracted passages from various reports containing country information; an email verifying the appellant’s certificate from the residential training program at the Sevalanka Foundation in 2010; and a transcript of the visa interview. The submissions included the following statement on p 1:

In our submission, the Delegate’s decision is primarily based on adverse credibility findings based on the information provided by the Applicant in his Entry Interview on 5 January 2013. We are concerned that despite extensive submissions being provided to the Delegate addressing the concerns which had been raised in the Applicant’s Departmental interview, the Delegate has relied upon niche aspects of the of the Applicant's case and evidence in arriving at her decision. We submit that the Delegate has not arrived at this decision with a mind open to persuasion and has been selective in her treatment of evidence. Should the IAA be unable to make a favourable decision based on the paper in this matter, we submit that the Applicant is entitled to a hearing before the IAA as this matter presents with exceptional circumstances as defined by the Migration Act.

(Emphasis in original.)

20    The request for a hearing was reiterated at p 5 of the submission:

We also submit that the Applicant has consistently provided detailed account of events throughout his application process which strengthens his credibility as a witness. In these circumstances, due to the above mischaracterisations and inconsistencies in the findings, we submit that a hearing should be scheduled in this case so that the IAA properly understands the applicant's claims. We submit that the decision was incorrectly decided and that based on the above submissions and the applicant’s previous evidence, the applicant satisfies sections 5(H)(l), 36(2)(a) and/in the alternative 36(2)(aa) of the Migration Act 1958.

(Emphasis in original.)

21    On 29 March 2017, the IAA decided to affirm the decision not to grant the appellant a SHEV. The IAA provided reasons for its decision (the Decision Record).

22    The IAA referred to the submission that had been made by the appellant’s representative and considered whether the material contained in the submission constituted “new information” for the purpose of s 473DC of the Migration Act. The IAA concluded that, except for certain country information, the material contained in the submission was not “new information”. Accordingly, the IAA had regard to that information.

23    However, the IAA concluded that certain country information relied on in the submission constituted “new information” as defined in s 473DC of the Migration Act. The IAA concluded that this information was general information and was in existence prior to the delegate’s decision. The IAA was not satisfied there were exceptional circumstances to justify considering that material.

24    The IAA noted the appellant’s claims for protection (which are summarised in [10] above) and noted further that the appellant claimed his health had been affected by his experiences in Sri Lanka. The appellant claimed to have problems with his vision, his memory and to have received daily counselling whilst staying at the detention camp on arrival in Australia.

25    The IAA noted that in submissions provided to the delegate, the appellant’s representative had also submitted that the appellant was at risk of harm on return to Sri Lanka because of his association with an NGO (the Sevalanka Foundation) and the period of time he had resided in Australia which is known for having a large Tamil diaspora.

26    The IAA accepted that the appellant was a Hindu Tamil from the Kilinochchi district in the northern province of Sri Lanka. The IAA accepted, as set out in [14] of the Decision Record, the appellant’s claims about growing up in an LTTE controlled area, the appellant’s family’s displacement during the war, the appellant’s schooling and his involvement in the Scouts as a student at the school and later as a Scouts trainer.

27    The IAA also accepted, as being consistent with country information, that on return to their village following the war, the appellant’s family was subject to ongoing reporting conditions. The IAA accepted it was plausible that, at that time and in an LTTE controlled area, students at the appellant’s school may have been trained in Scouts activities by members of the LTTE. The IAA also accepted the appellant’s claims that he undertook a leadership role in the Scouts at age 14 and was selected for participation in the agricultural course with the Sevalanka Foundation.

28    The IAA stated at [15] of the Decision Record:

I note the delegate’s concerns about the information provided by the applicant as part of his entry interview on 5 January 2013, the applicant’s statutory declaration post-interview, the report from his treating psychiatrist and submissions made by his representative on his behalf. I am mindful of the difficulties the applicant may have in putting forward his claims for protection and the circumstances under which entry interviews are conducted. I accept that during the entry interview, the applicant did not have the benefit of legal advice or assistance, was asked to provide brief answers and told that he would be provided further opportunity to outline his claims in full. In his statutory declaration the applicant stated that he thought the purpose of the interview was to establish his identity, he felt he needed to provide very short answers to the questions asked and that at the time of the interview he was feeling depressed, angry and was experiencing memory problems.

(Emphasis added.)

29    The IAA had regard to the appellant’s mental condition when considering his evidence, referring to a report from consultant psychiatrist, Dr Roy Nallaratnam, under whose care the appellant had been since 1 August 2016. That report noted that the appellant was being treated for severe anxiety and depression. The IAA noted at [16] that while the report did not attest to the appellant’s psychological health at the time of the entry interview, the IAA nevertheless accepted that “given the applicant’s circumstances and background and access to counselling services while in detention, he may have been experiencing symptoms of anxiety and depression at the time of the entry interview”.

30    At [17]-[18] of the Decision Record, the IAA stated:

17.    Given the primary purpose of the entry interview does not involve seeking detailed information about protection claims, I have not given particular weight to the applicant’s omission about features of his background, such as his involvement with the Scouts, during his entry interview.

18.    However, I consider his negative response to a question about whether he was ever arrested or detained by police or security organisations during the interview to be significant, given his later testimony provided as part of his application and visa interview that he was detained by the CID and the army on multiple occasions during 2010 and 2011. The relevant question was straightforward and only required a yes or no response. In the circumstances and despite his mental state at the time, I do not accept his explanation for the inconsistency. He was on notice at the outset of the interview of the importance of providing true and correct answers, this information was relayed within a short period of arriving in Australia and was provided during an interview of one hour and fifteen minutes length. I consider the applicant had adequate time and opportunity to consider his response and I am satisfied it is an accurate reflection of the applicant’s interaction with police and security organisations. On this basis, I have found his later claims going to the nature and extent of his encounters with CID and army personnel, as assessed below, to be less credible and an embellishment of his experience of harassment and monitoring by the authorities.

31    The IAA noted at [19] that the only time the appellant claimed he was questioned by the CID about his involvement with the Sevalanka Foundation was following his release from an encounter with the army, where his character was endorsed by the Sevalanka Foundation’s leader. The IAA found that there was no evidence before it that the authorities considered the Sevalanka Foundation to be a political or security risk. The IAA was satisfied that the appellant was not imputed with LTTE association on the basis of his study with the Sevalanka Foundation.

32    The IAA noted at [20] that there were a number of other aspects in the appellant’s account of his interaction with authorities in 2010 that were inconsistent with having a profile of LTTE association that would attract the adverse attention of the authorities. These matters were discussed at [20]-[22] of the Decision Record. At [21], the IAA stated that, “given the inconsistency in the applicant’s claims about whether he was detained by police or security organisations, I have considerable doubts that the applicant’s encounters with the CID and army involved arrest or detention”. At [22], the IAA noted that the appellant claimed to have had three encounters with the CID in 2010. The IAA concluded: “Given the second encounter involved the applicant being questioned by CID in a white van rather than premises associated with arrest and detention, I am willing to accept the applicant’s claims regarding his first two encounters with the CID in 2010”.

33    Based on country information indicating that the situation had improved for Tamils since the appellant left Sri Lanka, that the monitoring and harassment of Tamils in day to day life had decreased significantly under the Sirisena government, and also the personal circumstances of the appellant, the IAA was not satisfied that the appellant would face a real chance of serious harm for reason of his ethnicity or imputed political profile if he were to return to Sri Lanka.

34    The appellant also claimed he would suffer harm as a failed asylum seeker and for having departed Sri Lanka unlawfully. The IAA accepted that the appellant departed Sri Lanka illegally and that he would return to Sri Lanka as a returned asylum seeker from Australia and is likely to be identified as such. Having regard to country information and the characteristics of the appellant, the IAA did not accept that the appellant would suffer serious harm, be targeted by authorities or processed differently by officials on arrival in Sri Lanka on the basis of these characteristics.

35    As the IAA had found the appellant was not a person of interest to the Sri Lankan authorities, the IAA was not satisfied there was a real risk that the appellant would be subjected to mistreatment during any possible brief period in detention on return to Sri Lanka. The IAA was not satisfied that any pain or suffering caused by overcrowding and poor and unsanitary conditions in prison or on remand would be intentionally inflicted. The IAA did not accept that severe overcrowding and poor conditions were intended to cause extreme humiliation and accordingly did not meet the definition of “significant harm” in s 36(2A) of the Migration Act. The IAA concluded the appellant did not meet the s 36(2)(aa) criteria.

The proceeding in the Federal Circuit Court

36    The appellant applied to the Federal Circuit Court for judicial review of the IAA’s decision. The appellant relied on three grounds in his application. As the primary judge noted at [3] of the Reasons, the third ground was not a ground of judicial review. This left two grounds, which were as follows:

1.    The [IAA] constructively failed to review the [Minister’s] decision, denied the Applicant’s procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information.

2.    The [IAA] denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the [IAA] fell into error/denied the Applicant procedural fairness.

(Errors in original.)

37    After setting out the background facts, the primary judge considered ground 1 at [35]-[40] of the Reasons. Her Honour’s reasons were as follows:

35.    The Applicant has not particularised what particular matters or adverse information it is to which the Applicant refers. To that extent the ground could be considered meaningless.

36.    The IAA dealt with each of the claims made by the Applicant, correctly applied the relevant legislation, and made findings open to it on the evidence before it, for the reasons which the IAA gave. Such findings were rational and reasonable.

37.    The IAA accepted the Applicant’s claims regarding his first two encounters with the CID in 2010 but did not accept the third encounter. The delegate earlier had not accepted that the Applicant had been previously arrested, questioned or had been reporting until the time he departed Sri Lanka and thus the IAA in fact made findings more favourable to the Applicant than the delegate.

38.    The fact, however, that the IAA made different findings to the delegate is not a matter of concern. Part 7AA of the Act contemplates that the IAA will evaluate for itself the material considered by the delegate, and Part 7AA of the Act does not require the IAA to notify the referred Applicant that it is considering taking a different view, adverse to the referred Applicant, in relation to the material considered by the delegate. As was said in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72] by Reeves, Robertson and Rangiah JJ:-

“…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.”

And further, as below:-

“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.

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.”

39.    Further, as submitted by the First Respondent, s.473DA(1) of the Act makes clear that Div.3 of Part 7AA of the Act together with ss.473GA and 473GB of the Act is an exhaustive statement of the natural justice hearing rule in relation to reviews by the IAA.

40.    Whilst there may be circumstances in which it could be legally unreasonable of the IAA not to consider the exercise of the discretionary power in s.473DC(3) of the Act to conduct an interview with the Applicant, the circumstances of this case is not one of them. The IAA reassessed the material which the delegate had considered and made some differing findings.

(Footnotes omitted.)

38    The primary judge considered ground 2 at [41]-[43]. Her Honour’s reasons were as follows:

41.    Under ss.473DA(1) and 473DB(1) of the Act, prima facie, the IAA was required to conduct a review on the papers without conducting an interview.

42.    As was said above, there is nothing in the material to suggest the IAA acted in a manner that was legally unreasonable in not exercising its discretionary power under s.473DC(3) to conduct an interview with the Applicant. Under the statutory scheme, in the circumstances of this case, the IAA was not obliged to inform the Applicant of the issues it considered to arise on the review insofar as those issues were not found to be dispositive by the delegate.

43.    Whilst the various powers conferred on the IAA by Div. 3 of Part 7AA of the Act are:-

“…conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review….” [Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA 16, 21].

There is nothing in the facts of this case to suggest that the IAA ought to have considered exercising its discretionary power to interview the Applicant.

(Footnotes omitted.)

39    Accordingly, the primary judge concluded that no jurisdictional error was established, and dismissed the application for judicial review.

The appeal to this Court

40    The appellant appeals to this Court from the judgment of the Federal Circuit Court. The appellant, who is not represented, relies on the following three grounds, as set out in his notice of appeal:

1.    The IAA (Immigration Assessment Authority) has not complied with section 473DC(3) of the Migration Act by not conducting an interview with the appellant. The learned judge erred at paragraph 40 of her reasons for judgment by finding that the appellant’s case was not one of them warrants exercise of the discretionary power in section 473 DC (3). The IAA acted legally unreasonable by not exercising the power vested under section 473 DC(3) and thereby fell in to jurisdictional error.

2.    The IAA as an inquisitorial body could make a different finding from the delegate of the minister as correctly stated by the learned judge below at paragraph 40 of her reasons for judgment. However, when doing so the IAA was obliged to put the information which led to the different finding to the appellant under Section 424(A) of the Act. By not dining so the IAA fell into jurisdictional error.

3.    The Tribunal has not assessed the appellant’s claim cumulatively being a Young Tamil of Hindu faith from the North of Sri Lanka with perceived political opinion against the State. It is a jurisdictional error not to assess the appellant’s claim cumulatively. The learned judge erred in holding that this claim was assessed and thereby the Tribunal fell in to jurisdictional error.

(Errors in original.)

41    The appellant has not filed an outline of submissions. At the hearing of the appeal, he made oral submissions with the assistance of an interpreter. The Minister filed an outline of submissions in advance of the hearing.

42    I will consider each ground in turn.

Ground 1

43    By ground 1, the appellant contends that the primary judge erred at [40] of the Reasons. Her Honour concluded in that paragraph that it had not been established that the IAA acted in a manner that was legally unreasonable. The contention to which this conclusion was addressed was that the IAA had failed to exercise the power in s 473DC(3) to interview the appellant and that this was legally unreasonable.

44    During the course of the appeal hearing, I raised with counsel for the Minister whether, in circumstances where the appellant’s then representative specifically requested that the appellant be given a hearing, it was legally unreasonable for the IAA not to have considered (or, at least, expressly considered) whether to invite the appellant to attend an interview. I gave the parties the opportunity to file supplementary submissions on this question. The Minister filed a supplementary submission; the appellant did not.

45    For the reasons that follow, no error is shown in the primary judge’s conclusion that the IAA had not acted in a manner that was legally unreasonable.

46    As the Minister accepts, there may be circumstances in which the IAA could fall into jurisdictional error by failing to consider whether to exercise its discretion under s 473DC(3), if that failure was attended by legal unreasonableness: see Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [72], [82]; DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [70]. To succeed on this ground, however, the appellant would need to discharge the onus of establishing: (a) the factual foundation for the conclusion that the IAA did fail to consider exercising the discretion under s 473DC; and (b) that there was jurisdictional error in failing to consider exercising the discretion: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [38] per Thawley J.

47    Here, it is not established that the IAA failed to consider exercising the discretion in s 473DC. It is true that the IAA did not refer in its reasons to the appellant’s representative’s request that the appellant be given a hearing. However, in the circumstances of this case, I do not take the fact that the IAA did not refer to this matter to establish that it was not considered. The IAA referred expressly to the appellant’s representative’s submission and discussed whether to receive the material contained in the submission. This supports an inference that the IAA considered the whole of the submission, including the request for a hearing.

48    Further, it is not established that the IAA acted in a way that was legally unreasonable by not exercising the power in s 473DC(3) to invite the appellant to give new information at an interview. In order to establish jurisdictional error arising from legal unreasonableness, it is necessary: (a) for the appellant to identify the alleged failure with precision; (b) to examine the terms, scope and purpose of the statutory power that the IAA failed to consider; and (c) to evaluate the alleged failure to see whether it has the character of being legally unreasonable, for example because it lacked a rational foundation or an evident or intelligible justification, or because it was plainly unjust, arbitrary, capricious or lacking in common sense: see CCQ17 at [51].

49    As to (a), the appellant’s representative’s submission dated 27 February 2017 provides the best indication of the failure of which the appellant might now complain, namely a failure by the IAA to invite him to give new information at an interview on matters going to his credibility, or on “mischaracterisations and inconsistencies” in the delegate’s findings.

50    As to (b), I refer to the consideration of the relevant provisions of Div 3 of Pt 7AA in the decided cases, as discussed in CCQ17 at [46]-[49].

51    As to (c), it is important to recall that “new information” is any documents or information that “were not before the Minister” when the Minister made the decision under s 65 (s 473DC(1)(a)), and that the IAA is prohibited from considering any such information unless it is satisfied of the matters in s 473DD(a) and (b). The appellant’s representative’s submission, which contained the request for a hearing, did not suggest that the appellant had any “new information” to give to the IAA at any interview that it might conduct, beyond that to which the appellant specifically referred in the submission itself. As discussed above, the IAA considered whether it could receive the material referred to in the submission. To the extent that the material was not “new information”, the IAA took it into account. To the extent that the material was “new information”, the IAA was not satisfied that there were “exceptional circumstances” to justify its consideration. One of the matters that was raised in the submission and considered by the IAA was the entry interview and whether there was any inconsistency between the appellant’s responses (or omissions) during the entry interview and his later claims and evidence. This is a matter that had also been raised by the delegate and had been the subject of a statutory declaration and submissions. It was not a matter in respect of which the IAA did not have relevant evidence and the appellant was likely to have such evidence: cf Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475. In these circumstances, it was not legally unreasonable for the IAA not to exercise the power in s 473DC(3).

52    For these reasons, ground 1 is not made out.

53    Although not raised by ground 1 (or either of the other appeal grounds), I have considered whether the way in which the IAA relied on the entry interview in this case was legally unreasonable. I considered a ground to this effect (in relation to an arrival interview rather than an entry interview) in Minister for Home Affairs v AYJ17 [2019] FCA 591. In that case, the ground was successful at first instance in the Federal Circuit Court and an appeal from that judgment was dismissed. Having regard to the facts and matters set out above, on balance I consider that it was open to the IAA in the present case to rely on the entry interview in the way that it did. As [15] and [16] of the Decision Record indicate, the IAA was alive to the concerns that had been raised regarding reliance on the entry interview and took these into account. Ultimately, notwithstanding the matters recorded at [15] and [16], the IAA relied at [18] on the appellant’s negative response to a question about whether he was ever arrested or detained by police or security organisations. In the circumstances, it was open to the IAA to rely on the entry interview in the way that it did. The present case is factually quite different from Minister for Home Affairs v AYJ17. Among other things, the present case concerned an entry interview that commenced (it may be inferred) with the appellant being advised of the matters set out under the heading “Important Information” on the entry interview form (including the paragraphs set out above), and the IAA relied on a specific response given during the interview rather than an omission.

Ground 2

54    By ground 2, the appellant contends that the IAA was obliged to put information that led to different findings (from those made by the delegate) to the appellant. The appellant refers to s 424A of the Migration Act.

55    The reference to s 424A is misconceived. The IAA conducted the review under the provisions of Div 3 of Pt 7AA of the Act. Section 424A of the Act is not applicable to reviews under Div 3 of Pt 7AA. Section 473DA(1) of the Act makes clear that Div 3 of Pt 7AA, together with ss 473GA and 473GB, is an exhaustive statement of the natural justice hearing rule in relation to reviews by the Authority.

56    It was open to the Authority to disagree with the delegate’s evaluation of the material, and to make findings of fact that were different to those made by the delegate, without providing to the appellant an opportunity to respond: see DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [75]-[76].

57    For these reasons, ground 2 is not made out.

Ground 3

58    The error alleged by the appellant under ground 3 was not the subject of a ground of review before the primary judge. The appellant therefore needs leave to raise this ground. However, it is convenient to consider this ground on its merits.

59    By ground 3, the appellant contends that the IAA did not assess his claims cumulatively. However, the IAA expressly considered the appellant’s refugee claims cumulatively (at [47] of the Decision Record). In relation to complementary protection, the IAA relevantly relied on its reasons in relation to the refugee claims (at [54]), which included a cumulative consideration of the appellant’s claim.

60    For these reasons, ground 3 is not made out.

Conclusion

61    It follows that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also make an order that the appellant pay the Minister’s costs of the appeal, to be fixed by way of a lump sum.

Associate:

Dated:    17 May 2019