FEDERAL COURT OF AUSTRALIA

ENE17 v Minister for Immigration and Border Protection [2019] FCA 942

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to the appellant to rely on proposed ground 3 of the appeal.

2.    Leave is refused to the appellant to rely on proposed ground 4 of the appeal.

3.    The appeal is dismissed.

4.    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    The appellant (who may also be referred to as ENE17) is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia in September 2012 as an unauthorised maritime arrival. On 27 September 2016, he applied for a Safe Haven Enterprise (subclass 790) visa (SHEV).

2    On 15 March 2017, ENE17’s representative sent to the Department of Immigration and Border Protection (as it then was) some country information on the basis of which it was submitted that it could not be said for certain that a Tamil was safe and free from persecution in Sri Lanka. One of the reports provided was a UK Home Office Report “Country information and Guidance Sri Lanka: Tamil separatism”; it was version 3.0 of that report and dated August 2016. Another report was from the Department of Foreign Affairs and Trade (DFAT) “DFAT Country Report: Sri Lanka” dated 16 February 2015 (2015 DFAT report).

3    A delegate of the Minister for Immigration and Border Protection refused to grant the appellant a SHEV on 16 March 2017. That decision was affirmed by the Immigration Assessment Authority (or IAA) on 14 September 2017.

4    By application to the Federal Circuit Court of Australia, ENE17 sought judicial review of the Authority’s decision. On 30 November 2018, the Federal Circuit Court dismissed the application with costs: see ENE17 v Minister for Immigration and Border Protection [2018] FCCA 2453.

5    On 18 December 2018, ENE17 filed a notice of appeal from the judgment and orders made by the primary judge. It contained two grounds of appeal, with corresponding particulars.

6    Although ENE17 was represented by counsel in the proceedings in the Federal Circuit Court, he was not legally represented on the appeal. He filed written submissions which sought to raise two further grounds.

IAA’s decision Record

7    In its decision record (or DR) at DR[8], the Authority said:

The applicant’s claims can be summarised as follows:

•    He is Tamil born in the Central Province but resided in the Eastern Province.

…

•    After floods in 2011 he helped the youth league which supported the Tamil National Alliance (TNA). The village next to his supported the Tamil Magal Viduthacai Pulegal (TMVP). The youth league and the TMVP fought over goods that they received in the tsunami effort and refused to provide the TMVP with the goods that they wanted.

•    He was not actively involved with the TNA.

•    When he refused to give goods to the TMVP, the TMVP would report this to the Sri Lankan Army (SLA) who came and warned him not to take part in activities supporting the TNA.

•    On 27 June 2012 he was returning from his sister-in-law’s home after a funeral ritual for his wife’s grandmother. He noticed that there was a motorcycle on fire and he was involved in an altercation with some unidentified men, loaded into an army jeep and taken to a hall next to an army camp. He was questioned and his gold chain taken from him. He was told not to participate in charity work anymore. He told the men that he would tell them who was responsible for the fire to the motorcycle and report them to the SLA. He was asked to report to the SLA in two days or he would be in even more trouble. He was released and left the army camp.

•    He later learnt that two men entered a home looking for an individual however the person was not at home at the time. The occupants were told that the house would be searched. The men entered the house and sexually assaulted the sister of the person they were seeking. When the woman screamed, the locals came and scared the men away. The locals set fire to the motorbike as punishment for what the men had done.

•    He believes that the two men were Sinhalese from the SLA and that these men were trying to put the blame of the assault on him as a Tamil man as he would have been a soft target and as he was at the scene at the time.

•    When he went home he received a threatening call telling him that they suspected that he was responsible for the incident and he could tell from their voices that they were speaking Tamil with a Sinhalese accent. He was accused of being involved with the movement as he travelled abroad in 2007. He was accused of supporting the TNA.

•    He took the threat seriously and the next day travelled with his wife to Batticaloa and stayed with his wife’s elder sister.

•    He undertook his own enquiries by telephone through his sister-in-law. He did not make any further attempts to locate the men involved.

•    He was affected by the data breach in February 2014 and it would affect him adversely.

•    In August 2014 his wife received threatening phone calls asking for money and his whereabouts.

•    He believes that he will be harmed by that Karuna group and the SLA who abducted him. He also fears harm from the supporters of the TMVP and the SLA due to his support for the TNA. The Emergency Regulations are still in force in Sri Lanka and he will be arrested under the Emergency regulations.

At his SHEV interview the applicant bought up the claims that:

•    In 2002 and 2005 he was suspected of being involved in the movement or the Liberation Tigers of Tamil Eelam (LTTE) and arrested.

•    In 2011 the TMVP extorted money from him.

8    I will adopt the abbreviations used in DR[8] in these reasons. The following summary of the Authority’s decision record owes much to the primary judge’s summary at J[12]-[22].

9    The Authority accepted that ENE17 had experienced a level of harassment and discrimination on the basis of his Tamil ethnicity during the time of the conflict and soon after it ended and may have been caught in round ups, however it did not accept that he was otherwise targeted on suspicion of LTTE membership or involvement, including for the reason that he travelled abroad in 2007: DR[13], [14].

10    The Authority also accepted that ENE17 had worked with a youth club which operated under the patronage of the TNA to help distribute supplies and food and resettle people after the floods in 2011; that he had put up TNA posters; that he had helped the TNA with minor tasks, and that he had not been actively involved with the TNA: DR[15].

11    Based on version 2.0 of the UK Home Office Report “Country information and Guidance Sri Lanka: Tamil separatism” dated 19 May 2016 and a report by DFAT dated 24 January 2017 “Country Information Report Sri Lanka” (2017 DFAT report), the Authority accepted that the TMVP and TNA has still been in operation in 2011, that there had been tensions between the TMVP and the TNA, that they fought over goods and that the TMVP would report ENE17 to the SLA as claimed. It accepted also that the appellant was warned against taking part in activities to support the TNA by the SLA: DR[16] and footnote 2.

12    The Authority noted country information which indicated that, during and shortly after the conflict, groups associated with the government and paramilitary groups extorted people for money. It accepted that members of the TMVP approached ENE17 at his grocery store in 2011 and demanded that he pay money, however it was of the view that it was an opportunistic, one-off event. The Authority was not satisfied that, as a result of the incident, ENE17 went into hiding or that he left Sri Lanka because he had said that he continued to work in the store after the incident until he departed Sri Lanka: DR[17].

13    The Authority accepted that ENE17 attended a funeral ritual for his wife’s grandmother in June 2012 and that he noted that a motorcycle was on fire when he was returning home. It also accepted that he may have been stopped and questioned by authorities regarding the incident. However, it did not accept that he had been detained, beaten, tortured and a gold chain taken from him or that the Sri Lankan authorities attempted to frame him for the sexual assault of a woman or indeed that any woman was sexually assaulted on that occasion by the Sri Lankan authorities or other persons. It did not accept that he was being looked for by the police or that any criminal charges had been laid against him. As a consequence, it did not accept that he would be arrested under the Emergency Regulations in relation to that incident, or that he would have sparked any further interest from the Sri Lankan authorities or paramilitaries, including the SLA, police, Karuna group or TMVP: DR[20]. As a consequence of those findings, the Authority did not accept that ENE17 had been threatened as claimed or that his wife had received threatening telephone calls asking for money or for his whereabouts in August 2014: DR[21].

14    The Authority considered country information concerning the situation of Tamils as follows:

(1)    Based on the 2017 DFAT report, the Authority noted the “marked” improvement in the situation of Tamils since the end of the conflict and the change to the Sirisena Government, albeit that there continue to be reports of some individuals being monitored: DR[24] and footnote 4.

(2)    Information suggested that there are no longer any active paramilitaries in Sri Lanka, albeit that some ex-LTTE and ex-Tamil militants were reportedly working with the Sri Lankan military as informants or intelligence operatives. However there is “little hard evidence” and the activities do not appear to be the work of clearly identifiable groups: DR[25]. Footnote 5 indicates that this information is based on a December 2016 report of the Austrian Centre for Country of Origin and Asylum Research and Documentation.

(3)    Country information (being version 2.0 of the UK Home Office Report, the 2017 DFAT Report and a US Department of State report dated 13 April 2016) suggested that the TMVP has renounced paramilitary activities although it may still be involved in some criminal activity. In the 2017 DFAT Report, DFAT made the assessment that although extrajudicial killings, disappearances and kidnappings for ransom occurred frequently during the civil war, particularly in the north and east of Sri Lanka and they were largely attributed to Sri Lankan security forces, the LTTE and paramilitary groups, the number of such incidents had significantly reduced since the end of the conflict: DR[25] footnotes 6 and 7.

(4)    Based on version 2.0 of the UK Home Office Report, the LTTE has not held any military power or political authority since the end of the civil war in 2009. Being of Tamil ethnicity would not, in itself, warrant international protection. Neither, in general, would past membership or connection to the LTTE unless the person has or is perceived to have a significant role in relation to post-conflict Tamil separatism or appears on a ‘stop list’ at the airport. However, there is evidence that the security forces continue to detain individuals who they suspect of having LTTE connections and each case must be considered on the evidence provided: DR [26] and footnotes 11 and 12.

15    The Authority accepted that ENE17 suffered harassment and discrimination on the basis of his Tamil ethnicity during the conflict but it was not satisfied that he was singled out or targeted on that basis otherwise. It did not accept that he would be imputed with holding any pro-LTTE opinions or be suspected of ever having been involved with that group himself: DR[28].

16    While the Authority accepted that ENE17 had put up TNA posters and distributed donations and otherwise helped the TNA with minor tasks, it found that there was no independent evidence to suggest that such a low level supporter of that group would face a real chance of serious harm, particularly since he had not indicated that he would continue to assist the TNA in the future; so many years have passed since the events of 2011, and country information indicated that the political landscape has changed considerably since he left Sri Lanka: DR[29].

17    In relation to ENE17 being the subject of extortion by the TMVP on one occasion, the Authority noted the country information referred to above and the fact that, on his own evidence, there had only been one attempt in 2011, he did not pay them and the men did not return again. The Authority was not satisfied that there had been any further attempts to extort ENE17 or his family and seven years have passed since the incident without any interest in him: DR[30].

18    The Authority found that, viewing the evidence together, ENE17 did not face a real chance of serious harm from any Sri Lankan authority or paramilitary organisation on the basis of being a young Tamil male from the Eastern Province or from an area formerly controlled by the LTTE, his support for the TNA, suspicion of involvement with the LTTE, being extorted for money by the TMVP or the incident involving the burning motorcycle: DR[31].

19    At DR[33]-[38], the Authority considered the possibility that ENE17 might be harmed as a returning asylum seeker who departed from Sri Lanka illegally. That consideration canvassed what would happen to the appellant upon arrival at the airport, upon being charged with illegal departure under the Immigrants & Emigrants Act 1948 (Sri Lanka), the contingencies dependent on whether or not ENE17 pleaded guilty, noting that treatment under that Act is not discriminatory. This consideration was principally informed by the 2017 DFAT report. At DR[37]-[38], the Authority concluded as follows (references omitted):

37.    I have considered the evidence before me and while there are reports of failed asylum seekers returning to Sri Lanka being detained on arrival at the airport or after returning to their villages, and then being mistreated and subjected to torture particularly if they are detained for prolonged periods, the country information, considered as a whole, indicates that the key risk factor is whether the returnee is a Tamil has actual or perceived links to the Liberation Tigers of Tamil Eelam (LTTE). Merely being a failed asylum seeker is not enough, in my view, to give rise to a real chance of harm on return.

38.    The applicant is an ethnic Tamil and I do not accept that he will be imputed with pro-LTTE or anti-government dissident beliefs by the authorities for any reason, and I find that the applicant does not face a real chance of harm on returning to Sri Lanka.

20    At DR[39], the Authority concluded that it was not satisfied that ENE17 met the requirements of the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth) and so he did not meet s 36(2)(a) of the Migration Act. For similar reasons, at DR[44], the Authority found that the appellant did not satisfy the requirements of s 36(2)(aa) of the Migration Act. The Authority accordingly affirmed the decision of the delegate.

First and second grounds of appeal

21    The first ground of appeal is as follows (as written, footnotes removed):

The Federal Circuit Court Judge Smith erred in holding that the Authority failed to consider review material that had been provided to it by the delegate and in doing so had failed to comply with s.473DB(1). Section 473DB(1).

Particulars

a)    The applicant argued that the Authority did not consider the following parts of that report from the United Kingdom Home Office entitled "Country Information and Guidance Sri Lanka: Tamil separatism":

i.    6.5.2: " … A security force insider testified since the presidential election in 2015 that military intelligence officials from Joseph Camp were actively looking for any Tamils returning home from abroad in order to interrogate them ... "

ii.    6.5.5: "Tamils returning from abroad continue to be arrested under the PTA [Prevention of Terrorism Act] on suspicion of old LTTE involvement. .. "

iii.    6.6.3: "Human rights violations by the security forces continue with impunity and a predatory climate against Tamils prevails ... "

iv.    6.6.5 - Tamils had been abducted by the authorities for the 6.6.9: apparent purpose of extracting a ransom.

22    The second ground of appeal is as follows (as written):

The Federal Circuit Court Judge Smith ought to have found that the Immigration Assessment Authority (IAA) failed to consider the statement of reasons provided by the delegate and the Secretary and also failed to involve in an active intellectual process towards a matter which is favourable to the applicant. (See Tickner v Chapman (1995) 57 FCR 451, 462, 495; cf Minister for Immigration v MZYTS (2013) 230 FCR 431 at [38]).

Particulars

a)    The information between [CB122 and 125] and evidence deals with the danger to Tamils, including returnees from overseas stemming from arbitrary arrest, torture, and extortion.

b)    Had the IAA considered this information it may have found that the applicant may face harm as a returned asylum seeker and also as a Tamil wo lived in the former LTTE controlled area in the Eastern Province.

23    The first ground of appeal reflects the ground of review relied on by ENE17 in the Federal Circuit Court. The appellant’s written submissions to this Court only re-state that ground, without further elaboration. In relation to the second ground, the appellant’s written submissions were as follows:

(1)    The IAA is obliged to engage in an active intellectual process towards the submissions made to the delegate which include evidence and information “referred to above”. (I take the information “referred to above” to mean the paragraphs of version 3.0 of the UK Home Office Report referred to in the first ground.) The appellant submitted that the IAA did not deal with the information and evidence concerning the danger to Tamils, including returnees from overseas, stemming from arbitrary arrest, torture and extortion.

(2)    Had the IAA considered that information, it may have found that ENE17 may have faced harm as a returned asylum seeker and also as a Tamil. The jurisdictional error may be articulated as a failure to consider information as was required of the IAA pursuant to ss 473CC, read with 473DB(1) and 473CB.

24    The appellant’s oral submissions went to the merit of his claims.

25    I accept the Minister’s submission that the first two grounds essentially raise the ground considered by the primary judge.

26    In considering the ground of review, the primary judge set out s 473DB(1), which requires the Authority to review a fast track reviewable decision referred to it under s 473CA by considering the “review material” provided to it under s 473CB: J[24]. His Honour then set out (at J[25]) the definition of “review material” in s 473CB(1), as follows:

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 …

27    The primary judge noted that the “review material” that was given to the Authority in this case included version 3.0 of the UK Home Office Report which had been provided by the appellant’s representative to the Department of Immigration and Border Protection on 15 March 2017. The appellant submitted to the primary judge that the Authority did not consider the paragraphs from version 3.0 which are set out in the first ground and the Court could make that conclusion because the Authority did not refer to it in its statement of reasons: J[26]-[27]

28    It was argued that this was particularly so in the context of Part 7AA which heightened the obligation under s 473EA(1)(b) of the Migration Act (understood in the light of s 25D of the Acts Interpretation Act 1901 (Cth)) to provide reasons: J[27]. The primary judge noted that Lee J rejected this submission in DVB16 v Minister for Immigration & Border Protection [2018] FCA 1682 at [28]-[30] and that (at [30]) his Honour found that the particular nature of the review under Part 7AA did not alter the nature of the inferences that can, and will in appropriate cases be drawn either to support a conclusion that the Authority did not consider an issue relevant or that it failed to give an issue proper consideration. The primary judge then went on to say (at J[29]-[30]):

29.    It is well established that the obligation under provisions such as sub-s.473EA(1)(b) does not require a decision-maker to refer to all the material before it. The obligation does enable a Court to infer from the fact that information is not mentioned, that that information was not the basis for the decision-maker’s findings of material facts: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 95 FCR 506. However, the fact that information is not referred to in a statement of reasons does not mean that the information was not considered at all: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [31]; Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67 at [34].

30.    That said, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons: SZSRS at [34] referring to Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431 at [52].

29    The primary judge found that the issue was to be decided having regard to the information itself in the context of both ENE17’s claims and the Authority’s reasons for its decision. The primary judge noted that version 3.0 of the UK Home Office Report and the 2015 DFAT report were included in the material given to the Authority for the purposes of its review. The primary judge considered the content of version 3.0 and noted that the information which ENE17 said had not been considered by the IAA was contained in part 6 “Human Rights situation for persons perceived to support the LTTE or to be involved in Tamil separatism”. The primary judge noted that part 6 of version 3.0 was in turn divided into 10 parts and the information relied on by the appellant was contained in the fifth and sixth sections “Treatment of Tamil Returnees” and “Torture/ill-treatment”. His Honour noted that, at DR[3], the Authority said that it had had regard to the material given to it and the primary judge took this to be an indication that the Authority did have regard to the UK Home Office Report, although that “may not be decisive of the issue”: J[31]-[35].

30    The primary judge then noted the following at J[36]:

(1)    The Authority considered ENE17’s claims and gave references to the country information on which it based its findings.

(2)    On the basis of country information, the Authority accepted, at DR[16], that there were tensions between various political groups. One of the sources of that information was version 2.0 of the UK Home Office Report.

(3)    Version 2.0 was referred to by the Authority in connection with the TMVP (DR[25] and footnote 6) and the decline of the LTTE (DR[26] footnote 11).

(4)    The fact that version 2.0 was referred to and not version 3.0 does suggested that the Authority did not have regard to version 3.0; however, that is not conclusive of the issue for determination. The question is whether the Authority considered the information in the report.

31    In answering the question posed at the end of J[36], the primary judge found (at J[37]) that at the conclusion of version 3.0 there is information called “Version Control and Contacts” and that it states that the change from the last version of the guidance was to para 3.1.2: “Clarification of Policy Summary”. His Honour inferred that none of the other information was changed and that the information in question was in both versions 2.0 and 3.0 of the UK Home Office Report.

32    At J[38], the primary judge found that the “fact that the Authority specifically referred to parts of the UK Home Office report strongly supports the view that it had considered that report”.

33    At J[39], the primary judge found that the Authority dealt with each of ENE17’s claims in respect of which the information was relevant: abductions for ransom (at DR[25]) and mistreatment of Tamils returning from abroad (at DR[37]). In each case the Authority referred to information on which it based its conclusions. His Honour noted that that information included a DFAT report dated 24 January 2017 (that is, the 2017 DFAT Report), a far more recent report than the UK Home Office Report. The primary judge then said:

40.    The UK Home Office report was not, in the context of the applicant’s claims, such that I would infer that the Authority overlooked any aspect of it. The general tenor of it was that there were difficulties facing certain groups of Tamils although, generally speaking, the circumstances facing Tamils in Sri Lanka had greatly improved since the end of the war in 2009 and, more recently, since the election of the new government in 2015. Much of the information concerning risk to Tamils was premised on there being some link between those at risk and the Tamils in question: see for example 6.6.3. It will be recalled that the overall assessment of risk was that being a Tamil alone does not give rise to a well-founded fear of persecution or serious harm: 2.3.1.

41.    The applicant did not suggest that the information relied on by the Authority did not support its conclusions.

42.    In all of those circumstances, I am not satisfied that the Authority failed to consider any of the information in the UK Home Office report.

Consideration

34    Ground 1 of the appeal is not made out. The primary judge did not err in finding that there was no jurisdictional error on the claimed basis for the reasons that his Honour gave.

35    The primary judge found that Part 6 of version 3.0 (on which the appellant relied) and version 2.0 of the UK Home Office Report (referred to by the Authority) are the same. There is no reason to doubt that finding. I accept the Minister’s submission that the one paragraph of the UK Home Office Report which changed between those versions (based on the information in version 3.0 (August 2016) concerning changes from version 2.0 (May 2016)) is 3.1.2 which would not have assisted the appellant as it provides as follows:

A person being of Tamil ethnicity would not in itself warrant international protection. Neither in general would a person who evidences past membership or connection to the LTTE 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.

36    There is no reason to doubt the Authority’s statement at DR[3] that it had regard to the material given to it. As submitted by the Minister, each of the appellant’s claims to which part 6 of version 3.0 of the UK Home Office Report was said to be relevant in the first ground was either addressed by reference to version 2.0 of that report or the 2017 DFAT Report, as noted by the primary judge at J[36] and [39] (with citation to relevant passages of the Authority’s decision record). Versions 2.0 and 3.0 of the UK Home Office Report are relevantly the same. The Authority’s decision making could not be impeached for relying on the 2017 DFAT Report in addition to or in preference over version 3.0 of the UK Home Office Report (which was dated August 2016) in relation to the matters raised by the appellant in the first ground of appeal. The primary judge did not err to conclude as his Honour did at J[40].

37    I accept the Minister’s submission that the first and second grounds of appeal deal with the same subject matter. It is plain from the foregoing consideration of the first ground and the Authority’s decision record that it did engage in an active intellectual process with the material referred to it by the Secretary and other country information. The second ground is not made out for the same reasons as the first ground. The appellant has not demonstrated jurisdictional error by the Authority or appellable error by the primary judge on the basis of either ground.

New grounds and the question of leave

38    The appellant did not dispute that leave was required for him to rely on the third and fourth grounds of appeal, which had not been raised in the Federal Circuit Court. In support of the grant of leave, the appellant submitted that the third and fourth grounds have merit and that no prejudice to the Minister is evident. He relied on the principles developed in SZSFS v Minster for Immigration and Border Protection [2015] FCA 534; 232 FCR 262 (SZSFS v MIBP). In SZSFS v MIBP at [7]-[9], Logan J said:

7.    The issues sought to be raised by these proposed, amended grounds of review did not feature in the grounds of review in the judicial review application made to the Federal Circuit Court. This Court does not exercise an original jurisdiction in migration matters of the present kind and litigants ought not to be encouraged to think otherwise: Coulton v Holcombe (1986) 162 CLR 1 at 7 (Coulton v Holcombe). Over a decade ago, in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] (VUAX), the Full Court, having adverted to Coulton v Holcombe, remarked upon the prevalence in migration matters of endeavours to raise on appeal points not taken in the original jurisdiction. The Full Court held that leave to raise such a point may be granted only if it clearly has merit and permitting it to be raised entails no real prejudice to a respondent. More recently, in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101], Jessup J opined that, in addition to whether a fresh point had merit, an adequate explanation for the failure was necessary.

8    More than a decade after VUAX was decided, it is still not uncommon for Appellants to seek to raise a fresh issue on appeal in a migration matter. That is not always because of inattention to what was said in Coulton v Holcombe. Sometimes it is because a visa applicant not legally represented in the original jurisdiction manages, via a pro bono scheme, to secure such representation after the appeal notice has been filed and, for the first time, a person with legal training comes to consider what is, truly, an arguable jurisdictional error in the Tribunal’s decision. On other occasions, and the present on the evidence is one, there was legal representation in the original jurisdiction but the resources of an appellant are such that it is not possible for the services of counsel to settle a notice of appeal to be secured within the applicable appeal period but only afterwards.

9    In cases like the present and in relation to an application for leave to raise on appeal a point not taken below, it is always necessary to remind oneself of a number of matters. The disparity between the resources available to the Minister and an applicant for a Protection Visa is usually likely to be very great. An explanation of the kind proffered by the Appellants may be all that can be proffered. Further, an appeal to this Court is the final means by which, as of right, a Protection Visa applicant may secure a fresh opportunity to press on the merits before the Tribunal a claim for such a visa. Yet further, in terms of the future health, comfort or even life of an appellant, much possibly may turn on whether he or she has that further opportunity, given that the alternative to securing a Protection Visa is leaving Australia.

39    Relying on MZYPO v Minister for immigration and Citizenship [2013] FCAFC 1 at [102] per Jessup J; VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48], the Minister submitted that where there is no explanation for the failure to raise a new ground in the Court below and it would seem to have doubtful merit, leave should generally be refused.

Proposed third ground of appeal

40    The proposed third ground is as follows (as written):

Ground 3

The IAA conclusion is not reasonable and there is no evidentiary base for the determination.

The IAA without any evidence concluded that he would be granted bail on personal surety or guarantee by a family member. The IAA failed to provide explanation who is the family member who would act as a guarantor to bail him out from the prison.

It is respectfully noted that that the IAA erred in making assumptions as to grant of bail on return to Sri Lanka

There is nothing in the IAA Decision, or in dealing with relevant country information, which provides a basis or source for the statement that a family member is required to stand as guarantor, eligible to stand as guarantor. No country information to that effect is cited in the IAA Decision, and no relevant law providing who may stand as guarantor, and if a family member may stand as guarantor, what constitutes a "family member" for the purposes of the relevant Sri Lankan legislation, is cited. There is no legal or evidentiary basis who met the requirements for providing a guarantee. A conclusion reached for which there is no evident legal (in the sense of relevant Sri Lankan law cited) or evidentiary (in the sense of any relevant country information cited as to the legal practice in Sri Lanka) means that the IAA Decision, in this respect, lacks an evident and reasonable justification, and thus constitutes jurisdictional error: Li at [105) per Gageler J; Minister for Immigration & Border Protection v Pandey & Ors [2014) FCA 640; (2014) 143 ALO 640 at [61 (d)] per Wigney J.

Submissions concerning proposed third ground

41    ENE17 has offered a reason why the third ground was not raised in the Court below: the ground is raised on the basis of the decision in BVG15 v Minister for Immigration & Border Protection [2019] FCCA 290 (BVG15 v MIBP) which was decided after his case.

42    In BVG15 v MIBP, Lucev J summarised a decision of the Administrative Appeals Tribunal in relation to an application for a protection visa made by BVG15 and found as follows at [4(h)-4(i)]:

4.    The Tribunal

…

h)    accepted that the applicant left Sri Lanka in 1996 in a manner contrary to the Immigrants & Emigrants Act 1948 (Sri Lanka) (“I & E Act”) and that, upon his return to Sri Lanka, he would likely be charged with breach of the departure laws under s.45(1)(b) of the I & E Act, and held on remand pending a bail hearing, and be brought before a Magistrate for a bail hearing within a few days of his return and granted bail, based on personal recognisance, with the requirement for a family member to stand as guarantor: CB 355 at [88];

i)    was satisfied that:

i)    the applicant had family members in Sri Lanka including, but not limited to, the applicant's paternal uncles who could stand as guarantor: CB 355 at [88]; and

ii)    no payment of money would be required for bail: CB 355 at [88];

43    In BVG15 v MIBP at [30], Lucev J found:

There is nothing in the Tribunal Decision, nor in particular in Annexure “A” dealing with the relevant law or Annexure “B” dealing with relevant country information, which provides a basis or source for the statement that a family member is required to stand as guarantor, or that a paternal uncle is a family member eligible to stand as guarantor. No country information to that effect is cited in the Tribunal Decision, and no relevant law providing who may stand as guarantor, and if a family member may stand as guarantor, what constitutes a “family member” for the purposes of the relevant Sri Lankan legislation, is cited. Thus, while it is reasonable to assume on the evidence that a paternal uncle with whom the applicant and the applicant’s family have remained in contact might be prepared to stand as a guarantor, there is no legal or evidentiary basis for the conclusions reached that a paternal uncle is a family member capable of standing as guarantor for the purposes of the relevant Sri Lankan law, and is therefore a person who met the requirements for providing a guarantee, and the Minister’s submission to the contrary (see [25(d)(ii) above) is misconceived. A conclusion reached for which there is no evident legal (in the sense of relevant Sri Lankan law cited) or evidentiary (in the sense of any relevant country information cited as to the legal practice in Sri Lanka) means that the Tribunal Decision, in this respect, lacks an evident and reasonable justification, and thus constitutes jurisdictional error: Li at [105] per Gageler J; Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [61(d)] per Wigney J. For that reason, Ground 3 of the Amended Judicial Review Application is made out.

44    In supplementary written submissions filed before the hearing (albeit, without leave but also without objection by the Minister), ENE17 submitted that there was sufficient merit to this ground. He says that, since the “DFAT report” states that a family member may be required to act as guarantor, the Authority should have “looked whether the applicant has any family members in Sri Lanka who would act as a guarantor”. He submitted that it seems that the Authority’s decision was based on a “mere assumption” that the appellant has a family member. In the alternative, the appellant submitted that the Authority failed to consider whether there was a family member and whether that family member was able to act as a guarantor. ENE17 argued that, if the Authority formed the view that there is a family member who could act as guarantor, it should have invited him to provide his comment or response, rather than basing its decision on mere assumption. On this basis, ENE17 says that the Authority fell into jurisdictional error and leave should be granted to rely on the new ground.

45    The Minister did not claim that he will suffer real prejudice if the new grounds are agitated, he submitted that ENE17 must be able to demonstrate that it is in the interests of justice for leave to be granted. The Minister submitted that BVG15 v MIBP raises no issue of principle and it was decided on facts distinguishable from this case so that the proposed ground has no merit.

46    The Minister submitted that in BVG15 v MIBP, the primary judge found that the Tribunal erred because it made findings as to what would occur if BVG15 was returned to Sri Lanka. In contrast, in this case, the Authority made findings as to what might occur, based on country information, and that involves no error on its part.

47    Shortly after the hearing, on 31 May 2019, the Full Court in DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (DCP16 v MIBP) handed down its decision. One of the grounds in that case attacked findings of the Authority concerning what might happen to DCP16 upon his return to Sri Lanka as someone who left Sri Lanka illegally, that is, contrary to the Immigrants & Emigrants Act. One of the arguments in support of that ground was that the Authority’s finding that DCP16 would be able to get bail might be thought to involve an antecedent finding that a member of his family would stand as guarantor for that purpose (see DCP16 v MIBP at [76]. The case was referred to the parties for supplementary submissions, which each of them filed.

48    ENE17 submitted that his case should be distinguished from DCP16 v MIPB. He says that, in DCP16’s case, the Authority found that a family member may have to act as guarantor but, in his case, the Authority noted that the family is required to act as guarantor. ENE17 submitted that, in DCP16 v MIPB, the Full Court dismissed the appeal because it was not critical to the Authority’s decision that a family member may have to act as guarantor, however, in ENE17’s case it was a critical observation made by the Authority. ENE17 says the Authority made an assumption that a family member would do so and that was a “legal error” because the Authority did not invite him to comment on that issue before finalising the matter.

Should leave be granted to raise the third ground on appeal?

49    The Minister does not claim that he will suffer real prejudice if the new grounds are agitated. The fact that BVG15 v MIBP was decided after ENE17’s case was decided by the primary judge is an explanation for why it was not raised in the Court below. I am satisfied that proposed ground three has sufficient merit to warrant consideration on appeal so that leave to rely on it should be granted, but for the reasons that follow, it is not made out.

Consideration

50    I accept the Minister’s submission that this case is distinguishable from BVG15 v MIBP and that it is not distinguishable from DCP16 v MIBP.

51    The issues raised by the proposed third ground were considered by the Authority at DR[34]-[35] and in relation to complementary protection at DR[43] as follows:

34.    Information in the DFAT report notes that after processing at the airport, persons who departed illegally are charged under the Sri Lanka’s Immigration and Emigration Act (I&E Act), fingerprinted and photographed, and then transported to the closest Magistrate’s Court at the first available opportunity once investigations are completed, at which point responsibility shifts to court or prison services.16 Prior to being taken from the airport, an illegal deportee can remain in police custody at the airport for up to 24 hours after arrival and if no Magistrate is available before this time (eg because of a weekend or public holiday) they may be held at a nearby prison.17 Because he departed illegally the applicant may be arrested and charged under the I&E Act. When brought before a court, a person who pleads guilty will most likely be fined and discharged. While penalties can include imprisonment for up to five years and a fine of up to $200,000 Sri Lankan Rupees (SLR), DFAT advises that no returnee who was merely a passenger on a people smuggling venture has ever been given a custodial sentence for departing Sri Lanka illegally. Fines are imposed on a discretionary basis, are generally between 5 and 50 thousand SLR, and may be paid by instalments. As he was not involved in organising or facilitating people smuggling, I find that there is no real chance that the applicant will be given a custodial sentence.

35.    Based on DFAT’s advice I find that if the applicant were to plead not guilty, he would either be immediately granted bail on personal surety, or he might have to wait to be collected by a family member if required to have a family member act as guarantor. DFAT advises that if bailed [sic: bail] is granted there are rarely any conditions. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organisers/facilitator of the boat venture. There is no general requirement to report to police or police stations between hearings. I am not satisfied that the imposition of any fine, surety or guarantee would of itself constitute serious harm. As DFAT advises that there are usually no reporting requirements attached to the grant of bail, I do not consider that the applicant would be required to report regularly to local police in his village and I am satisfied that he is not at risk of harm in those circumstances. In the absence of any information provided by the applicant to suggest that he would be unable to post bail, I am satisfied that he will be able to do so.

…

43.    I accept that the applicant will be detained at the airport for questioning and security character checks as a result of his illegal departure. He may be charged with an offence under the I&E Act because he departed Sri Lanka illegally and fined. He may be remanded in custody for a short period either at the airport or at a prison, while waiting to be brought before a magistrate who will most likely quickly grant bail. I do not accept that there are any particular aspects of the applicant’s profile that would result in his being detained for a longer period or subjected to more intensive interrogation that might give rise to significant harm. I am not satisfied that there is a real risk that the applicant will be subject to the death penalty or that he will be arbitrarily deprived of his life. I do not accept that the process outlined above amounts to significant harm or that the applicant would be exposed to significant harm during this process. Nor does the penalty likely to be imposed on the applicant, or the remand conditions he would most likely face, amount to any form of significant harm. I am not satisfied that there is an intention to inflict pain or suffering, severe pain or suffering or cause extreme humiliation. I am not satisfied that there is a real risk that the applicant will face torture, cruel or inhuman treatment or punishment, including as a result of conditions he may face during a short period of custody.

Footnotes 16 and 17 in DR[34] indicate that the material relied on comes from the 2017 DFAT report at [5.21].

52    The Authority said (at DR[35]) that it relied on “DFAT advice” for what followed in that paragraph. Accordingly, in contrast to BVG15 v MIBP, the Authority did cite the authority on which it relied for its findings in DR[35]. While DR[35] contains no footnotes, it is plain that it derives from the 2017 DFAT Report at [5.22], which is in different terms to the 2015 DFAT Report at [5.28] to which the Minister’s representative took the Court at the hearing. The 2015 DFAT Report at [5.28] relevantly provides:

… In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.

The 2017 DFAT Report at [5.22] provides as follows (emphasis added):

According to the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines has been issued to act as a deterrent towards departing illegally in the future. Fine amounts vary on a case-by-case basis (but can be up to 200,000 Sri Lanka rupees/AUD2,000) and can be paid by instalment. If a person pleads guilty, they will be fined (which they can pay by instalment) and are then free to go. In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor. Where a guarantor is required, returnees may sometimes need to wait until a family member comes to court to collect them. There are rarely any conditions in relation to the bail, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a people smuggling venture. There is no general requirement to report to police or police stations between hearings.

53    I accept the Minister’s submissions that ENE17’s submissions appear to rest on a misapprehension or misreading as to the content of DR[35]. Contrary to ENE17’s submissions, the Authority did not find that a family member “is required to act as a guarantor”. Rather, its finding was that if a returnee did not plead guilty, “in most cases” the returnee would be “immediately granted bail … on the basis of personal surety or they may be required to have a family member act as a guarantor … [and] returnees may sometimes need to wait until a family member comes to court to collect them” (emphasis added).

54    I also accept the Minister’s submissions that the Authority’s treatment of the guarantor question in this case was relevantly similar to the approach of the Authority in DCP16 v MIBP (see [74]-[75]). Indeed, in all material respects, it was the same.

55    The factual matrix was also relevantly the same in that DCP16 had family members in Sri Lanka (as did ENE17: see DR[14], [22], [30] and [32]) and both submitted to the Full Court that the delegate’s decision did not address the capacity of the appellant’s family members to act as guarantor and that appellant was not asked about whether a family member was willing to act as a guarantor during the delegate’s interview: see DCP16 v MIBP at [78].

56    On these issues, the Full Court found as follows in DCP16 v MIBP:

(1)    Contrary to DCP16’s submissions, the Authority did not make any assumption that a family member would act as guarantor. The country information was that the appellant may be required to have a family member act as guarantor and that is what the Authority said. The question of whether a family member would act as guarantor was not critical to the Authority’s decision, relying on SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404 at [79] per Robertson and Kerr JJ: DCP16 v MIBP at [97].

(2)    On the question of the guarantor, the Authority was dealing with a triply contingent hypothetical: First the appellant had to plead not guilty. If he pleaded guilty, the question of a guarantor would not arise, the appellant would be fined and that was payable by instalments. Second, if he pleaded not guilty, he could be released on his own recognisance. In that contingency, no guarantor would be required. Third, the guarantor question would only arise if he pleaded not guilty and his personal recognisance was not sufficient. In that eventuality, and given that there was no immediate payment of money required from a guarantor, it might be expected that a family member may act as guarantor to secure the appellant’s release, but that is in the realm of a hypothetical with which the Authority did not need to speculate or discuss in detail: DCP16 v MIBP at [98].

(3)    The Authority’s finding was that a family member may be required to act as guarantor, not that a family member is required to do so, as discussed in ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 (ABA15 v MIBP) at [46], [49], [50] and [52]. Therefore any implicit finding about whether a family member would act as guarantor was not a critical step in the Authority’s reasoning (cf ABA15 v MIBP at [53], [57] and [58]), but in any event, ABA15 v MIBP may go too far. Further, and in the alternative, even if there was any implicit finding that a family member could act as guarantor, that is not a critical finding because the Authority’s finding was only that a family member may be required to act as guarantor. Even if the implicit finding were in error, there would not be any realistic possibility that the Authority would have reached a different decision absent the error: DCP16 v MIBP at [100]-[101].

(4)    The Authority’s treatment of the guarantee question is unremarkable in the generality with which it was expressed: DCP16 v MIBP at [102].

(5)    The Authority gave independent reasons for rejecting the appellant’s claims on this point, noting the Authority’s findings that the appellant would not be exposed to “serious harm”: DCP16 v MIBP at [103].

57    I am satisfied that, having regard to the direct parallels between the factual circumstances of ENE17 and DCP16 and the Authority’s treatment of a returnee’s risk of serious harm as a person who left Sri Lanka illegally and a failed asylum seeker in both cases, the Full Court’s decision in DCP16 v MIBP is binding as a matter of precedent with the result that this ground of appeal must fail. I am also satisfied that it is clear that the Authority had an evidentiary basis for its findings in ENE17’s case – being the country information to which it referred – and its conclusions from that evidence were logically available and not legally unreasonable.

Proposed fourth ground

58    The proposed fourth ground is as follows (as written):

Ground 4- The IAA failed to provide any evidence for its decision.

The IAA in its decision in paragraph 30 noted that TMVP has renounced paramilitary activities. It should be note that the IAA did not provide any country information to confirm it or did not identify any such country information from the DFAT report.

59    I am satisfied that leave to rely on the proposed fourth ground of appeal should be refused. ENE17 offered no explanation for why this ground was not raised before the Federal Circuit Court and it lacks any merit such that it is not in the interests of justice that it be allowed to be considered on appeal.

60    The Authority said at DR[30]:

Regarding the applicant being the subject of extortion once by the TMVP, country information suggests that although the TMVP may still be involved in some criminal activity, it has renounced paramilitary activities and that the number of incidents for ransom has significantly reduced since the end of the conflict. On the applicant’s own evidence, he only has one incident of extortion by the TMVP in 2011, he did not pay the men and that the men did not return again. I am not satisfied that there have been any further attempts to extort the applicant or his family and it has now been some seven years since this incident without any interest in the applicant.

61    The Minister submitted, and I accept, that although the Authority did not state to which country information it referred in DR[30], that “country information” is to be found in footnotes 22-23 in the delegate’s decision record as authority for the following statement by the delegate:

While the TMVP remains engaged in some criminal activity, it has renounced paramilitary activities. The August 2015 Parliamentary election was described as peaceful in pre-election period and the police appeared to take a more active approach with arrests of election law violators regardless of the party association.

Footnotes 22-23 indicate that this information is based on version 2.0 of the UK Home Office Report and the 2017 DFAT Report, among a number of international reports which are there cited.

Conclusion

62    The appeal should be dismissed with costs.

Associate:

Dated:    20 June 2019