FEDERAL COURT OF AUSTRALIA

EAJ18 v Minister for Home Affairs [2019] FCA 1057

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal on grounds 2 and 3 is refused.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs to be agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The appellant is a citizen of Sri Lanka who arrived in Australia on 26 August 2012. On 3 August 2015 the appellant applied for a Temporary Protection Visa and on 19 September 2017 the Minister’s delegate refused the application. On 18 July 2018 the Immigration Assessment Authority (the Authority) affirmed that decision. This is an appeal from an order made by the Federal Circuit Court of Australia on 18 December 2018 dismissing an application for judicial review of that decision of the Authority.

2    The appellant appeared unrepresented at the hearing, although he was assisted by an interpreter.

3    He appeals on five grounds, which he had assistance in drafting. The grounds can be summarised as follows:

(1)    The Authority committed jurisdictional error by failing to consider the more recent Department of Foreign Affairs and Trade (DFAT) report on Sri Lanka dated May 2018.

(2)    The Authority committed jurisdictional error by failing to take into account the possibility that the appellant’s claims concerning past events were true, relying on Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

(3)    It was legally unreasonable for the Authority to not exercise its power under s 473DC of the Migration Act 1958 (Cth) (the Migration Act) to put the inconsistencies to the appellant for comment.

(4)    The Authority failed to consider the appellant’s brothers’ claims in a proper and fair manner.

(5)    The Authority committed jurisdictional error by failing to find that the new material provided by the appellant, namely an article / speech about repealing the Prevention of Terrorism Act (PTA) (PTA article) and a Committee Against Torture Report dated 30 November 2017 (CAT report), satisfied the criteria under s 473DD of the Migration Act, and therefore failing to take that information into account.

4    For the reasons below the appeal is dismissed.

Decision of the Authority

5    The Authority commenced by considering whether to have regard to the submissions and new information provided on behalf of the appellant. The Authority concluded that in so far as the appellant’s submission contained legal argument, it would have regard to that submission. However, in relation to the new information, the Authority found that it did not satisfy the conditions in s 473DD of the Migration Act.

6    The Authority identified the appellant’s claims as follows:

•    He is a Hindu Tamil born on 25 September 1985 in Komari Village, Panamapattu division, Ampara district, Eastern province Sri Lanka.

•    His father was killed and one of his brothers went missing.

•    After the tsunami items from the Special Task Force (STF’s) camp washed onto their property. They informed the authorities and the authorities came and questioned them about it. People were looking for him after the tsunami.

•    Through his sister, he performed work for the Karuna group, a Tamil paramilitary group during the harvest period in 2012. The Karuna group did not pay as promised. He lodged a complaint with the police.

•    He moved to Uhani, a Sinhalese area and worked for a Sinhalese person. Where he was in Uhani, he learnt that members of the Karuna group went to his home searching for him several times. They threatened to kill the applicant if they found him as he did not complete the work agreed. His sister was also threatened. He then decided to flee Sri Lanka in August 2012.

•    Since leaving Sri Lanka the Karuna group and the Criminal Investigation Department (CID) have caused problems for his sister. The CID has visited his sister asking of his whereabouts. The Karuna group are now part of the STF. His sister had since sold the farming vehicles as she feared the Karuna group would cause trouble for her.

•    He fears harm from the Karuna group and the Sri Lankan authorities as he did not complete the agreed work for the Karuna group. He will face problems with the CID on return as he worked for the Karuna group. He also fears harm due to his illegal departure.

•    He will be at risk of harm because of the circumstances of his younger brother’s departure in 2011. On return his family will be processed as a group. The returnees are also processed en masse. As such, the applicant could be adversely affected because of the profiles of his brothers and other people in the group. The applicant could also face harm due to the increased sinhalisation in North and East.

7    The Authority found that the appellant’s father had died of natural causes and did not accept that he had been shot and killed. It was not satisfied that the appellant’s brother was killed, however it accepted the appellant’s brother had gone missing in the early 2000’s. It did not accept the Sri Lankan authorities were responsible for the disappearance or that the appellant faced any risk of harm as a result of the disappearance.

8    The Authority found it highly unlikely that the STF would suspect the appellant of keeping items washed up after the tsunami, especially given that he had reported the items to them. The Authority was not satisfied that the STF had any further interest in the appellant or that he would be suspected of having connections with the Liberation Tigers of Tamil Eelam (LTTE).

9    As to the Karuna group claims, which related to some work the appellant said he did for them through his sister, the Authority considered the appellant’s evidence to be problematic, including that it was vague, inconsistent and implausible and as a result not credible. The Authority did not accept that the appellant had been threatened by the Karuna Group. Nor did the Authority accept that the Karuna group or the CID threatened his sister or looked for the appellant after he left Sri Lanka.

10    The Authority accepted that two of the appellant’s brothers had left Sri Lanka by boat and were also seeking asylum in Australia. However, the Authority was not satisfied that the appellant will be perceived to be pro LTTE or anti-government because of this. The Authority did not consider there was credible information before it to support the claim that if one person in the group attracts adverse attention from the authorities, other people in the group would be imputed with the same profile.

11    The Authority accepted that the appellant will likely be considered upon return to Sri Lanka to have committed an offence for leaving Sri Lanka illegally, will likely be questioned, arrested and charged at the airport, held in custody for up to 24 hours or detained in a prison for a short period of time. The Authority was not satisfied that the questioning, short period in detention or prison, combined with the imposition of a fine, amounts to serious harm within the meaning of s 5J(5) of the Migration Act. The Authority found that these laws and procedures dealing with the appellant will be applied and enforced on a non-discriminatory basis and, as such, they do not constitute persecution for the purposes of s 5J(1) of the Migration Act.

12    On the basis of those findings, and by reference to the country information, which included a January 2017 DFAT report, the Authority concluded that the appellant did not face a real chance of persecution required to meet s 36(2)(a), or a real risk of significant harm required to meet s 36(2)(aa), of the Migration Act.

Decision of the Federal Circuit Court

13    The appellant appealed to the Federal Circuit Court on four grounds. He was unrepresented at the hearing of the appeal.

14    In summary, the grounds alleged jurisdictional error on the basis that: (1) the Authority failed in its obligation to consider the more recent DFAT report publication on Sri Lanka dated May 2018 (in particular, that there was a breach of Direction 56 made under s 499 of the Migration Act); (2) the Authority failed to consider the new information put forward by the appellant; (3) the Authority exercised its discretion in an unreasonable manner when disregarding all new information provided by the appellant; and (4) the Authority failed to consider the appellant’s brothers' claims in a proper and fair manner.

15    After reciting the reasons of the Authority, the primary judge rejected each ground and dismissed the appeal.

Consideration

16    The appellant relies on five grounds of appeal, two of which were not relied on in the Federal Circuit Court. It follows that in relation to those grounds, being grounds two and three, leave to appeal is required. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (VUAX) at [46]-[48]. I will address those grounds below, but in summary, they each have no merit. There is no basis, or utility, in granting leave in this case.

17    The appellant did not file any written submissions, but made oral submissions which focussed on why he should be granted a visa as opposed to his grounds of appeal. In the circumstances this is unsurprising.

18    However, neither this Court, nor the Federal Circuit Court, has jurisdiction to decide whether the appellant satisfies the criteria for the grant of a protection visa: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] per Sackville J; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] per Kirby J. Neither Court has jurisdiction to consider the factual merits of the Authority’s decision. The issue is not whether this Court or the Federal Circuit Court agrees with the decision. Moreover, this Court is not a forum in which a party may simply reargue the case in the hope of convincing a judge to take a different view of the evidence: DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [21].

19    The Federal Circuit Court could only have disturbed the decision of the Authority under review if that decision was infected by jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1223 at [13] per French CJ, Hayne, Crennan, Kiefel and Bell JJ. This Court’s appellate function is to ascertain whether there is an error in the decision of the Federal Circuit Court.

20    The respondent nonetheless addressed the principal matters raised orally by the appellant which related to factual matters on which the Authority had made adverse findings. The only matter raised by the appellant in his submission which was not in that category, related to the bombings in Sri Lanka which occurred at Easter 2019 with a plea that it was now unsafe for him to return. As the respondent correctly submitted, given the nature of this appeal, those recent events are irrelevant to determining whether any error has occurred.

Ground 1: recent country information

21    This ground complains that the Authority should have had regard to an updated version of the country information report, and that its failure to do so was legally unreasonable, relying on Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 (DZU16), and Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (CRY16) in support of that proposition. I note this ground is framed differently from the corresponding ground in the Federal Circuit Court.

22    This ground directs attention to s 473DC of the Migration Act. Whether a statutory power is exercised reasonably, requires a consideration of the statutory terms, context, subject matter and purpose of the provisions under which the power is exercised: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [106]-[110].

23    Division 3 of Pt 7AA of the Migration Act, together with s 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: s 473DA(1). Pt 7AA requires the Authority to review a fast track reviewable decision referred to it under s 473CA by considering the review material, as defined in s 473CB, without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1) This is subject to s 473DC, including subsection (2), which states that there is no duty upon the Authority to get, request or accept any new information.

24    In CRY16 at [82] the Court explained legal unreasonableness in the statutory context of s 473DC as follows:

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

25    The Court in DZU16 applied CRY16.

26    This case is factually distinguishable from CRY16 and DZU16. In CRY16 the Authority made its decision based on relocation in circumstances where the delegate had not made the decision on that basis. The Court pointed out it was significant that what was reasonable, in terms of relocation, must depend upon the particular circumstances of the applicant for refugee status and the impact on that person of relocation: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [24]. As the passage above reflects, the Authority knew that it did not have, but the applicant for the visa was likely to have, information on his particular circumstances and the impact of relocation on him. In those circumstances, the failure of the Authority to consider exercising its discretionary power under s 473DC to get information from the applicant on the issue of relocation was legally unreasonable. While the circumstances in DZU16 are different, the Court concluded that the decision in CRY16 leads to a comparable conclusion: DZU16 at [81]. In DZU16 the delegate made the decision on the basis of relocation to one particular location, while the Authority’s decision was based in part on relocation to another location about which the applicant had not been asked by the delegate. In each case where the issue was relocation, the Authority took into account new material which was not before the delegate without considering whether to exercise its discretion under s 473DC: DZU16 at [81].

27    Those factual circumstances do not exist in this case.

28    The Authority in this case had, and considered, the country information which was provided to it as part of the review material, being the January 2017 DFAT country information report. The Authority also had other reports addressing country information before it, including the UK Home Office “Country Police and Information note, Sri Lanka: Tamil separatism” dated March 2017, UNHCR “Human rights and counter-terrorism UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism concludes visit to Sri Lanka preliminary report” dated July 2017 and DFAT, “UN Special Rapporteur on human rights and terrorism in Sri Lanka” dated August 2017. No information had been provided by the appellant to identify any material difference between the updated DFAT report and the one taken into account by the Authority: DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580 at [25]-[28]. Nor did the appellant identify any matter which the Authority did not consider in relation to the country information.

29    In those circumstances it was not unreasonable for the Authority not to consider exercising its powers in s 473DC of the Migration Act to obtain new information in the form of the May 2018 country information report. The primary judge correctly concluded there was no jurisdictional error.

30    This ground is not established.

Ground 2: failure to take into account the possibility the appellant’s claims were true

31    As noted above, this ground is raised for the first time in this Court, and as such, leave to appeal is required.

32    The relevant principles for the grant of leave are those identified in VUAX at [46]–[48] where the Full Court said:

In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

33    The respondent opposed leave being granted on the basis that the new ground lacked sufficient merit. The respondent is correct.

34    The appellant’s reliance on Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, which underpins this ground, is misplaced.

35    The relevant passage of the judgment relied on by the appellant is based on the premise that there is the presence of doubt on the part of the Tribunal (here the Authority) as to its conclusions. Sackville J, with whom North J agreed, stated at [62]:

In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

36    In this case the Authority did not express any doubts as to its conclusion. To the contrary, the Authority rejected the claims. It was not required to take into account the possibility that the appellant’s claims concerning past events were true.

37    Leave to appeal on this ground is refused.

Ground 3: failure of the Authority to put inconsistencies to the appellant for comment

38    This ground contends that the Authority should have exercised its power under s 473DC of the Migration Act to put inconsistencies to the appellant for comment, and that its failure to do so was legally unreasonable. The appellant relies on Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 (Plaintiff M174) in support of this ground. As noted above, this ground requires leave to appeal.

39    As described above, Pt 7AA of the Migration Act contemplates that the Authority will evaluate for itself the material considered by the delegate. The statutory regime does not require the Authority to notify the referred applicant that it is considering taking a different view or a view adverse to the referred applicant, of the material considered by the delegate.

40    As discussed above, there are circumstances in which it is legally unreasonable to fail to consider exercising the discretion under s 473DC(3): for example, CRY16 at [82]; DZU16 at [80], [81]. However, this case is not one of those circumstances.

41    The appellant’s reliance on Plaintiff M174 is misplaced. In Plaintiff M174 the Court considered legal unreasonableness in the context of a failure by the minister or delegate to comply with s 57(2) of the Migration Act (which requires that the applicant be provided particulars of relevant information and invited to comment on it) and observed at [71] per Gageler, Keane and Nettle JJ:

Non-compliance by the Minister or delegate with s 57(2) of the Act would have the potential to impact on the validity of the Authority’s decision were relevant information obtained without compliance with s 57(2) included in the review material given to the Authority and then taken into consideration by the Authority without the Authority first inviting the referred applicant to respond to that relevant information.

[J]urisdictional error would potentially lie either in non-compliance on the part of the Authority with the duty imposed by s 473DE(1) (in a case where the relevant information was not before the Minister or delegate at the time of making the decision under review and is therefore capable of being new information) or, in the absence of good reason for not doing so, in an unreasonable failure to exercise the power conferred by s 473DC(3) (in a case where the relevant information was before the Minister or delegate at the time of making the decision under review and is therefore incapable of being new information).

42    The circumstances described by the Court in Plaintiff M174 do not exist in this case. While the Court in Plaintiff M174 accepted that legal unreasonableness might arise where the Authority failed to exercise the power under s 473DC(3), it concluded that in that case the Authority’s choice not to exercise its power under s 473DC(3) was open to it, and justified by the reasons it gave: Plaintiff M174 at [74]-[75] per Gageler, Keane and Nettle JJ.

43    As was said in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [72], [75], [76]:

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

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.

44    Moreover, the comments of the Court in DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74] are apt:

Finally, we note the appellant’s criticisms of the IAA’s findings in respect of credibility. However we endorse the observation of Lee J in DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580 at [17] that if the IAA were compelled to invite an applicant to an interview merely because his or her credibility is called into question, the result would be that the IAA would generally come under an obligation to issue an invitation, as adverse credit findings are made in the majority of cases coming before the courts. That would not only be inconsistent with the text of s 473DC(2), but would also defeat the purpose of the fast track review process.

45    It was not unreasonable for the Authority not to consider exercising its power under s 473DC.

46    This ground is without merit. Leave to appeal is refused.

Ground 4: failure to consider the brothers’ claims

47    The claim in this ground, that the appellant’s brothers’ claims were not considered in a “proper and fair” manner, is not borne out by the reasons of the Authority.

48    As the primary judge correctly observed, the Authority did consider the brothers’ claims in relation to the appellant’s claim. The appellant has not identified how that consideration was not a proper or fair consideration in the circumstances.

49    This ground has not been established.

Ground 5: exceptional circumstances

50    This ground alleges that the Authority contravened s 473DD when it failed to find exceptional circumstances in relation to two documents, the PTA article and the CAT report. It is alleged that the Authority impermissibly confined the meaning of “exceptional circumstances” in s 473DD(a) by reference to the matters in s 473DD(b), citing BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 (BVZ16) at [9] in support of this ground.

51    The Authority expressly addressed each of those documents separately and considered whether the conditions of s 473DD were satisfied. The requirements of s 473DD(a) and (b) are cumulative: Plaintiff M174 at [31] per Gageler, Keane and Nettle JJ. The Authority needs to be satisfied that there are "exceptional circumstances" per s 473DD(a), and that one or other of the conditions set out in s 473DD(b)(i) and (ii) have been met before it can consider the new information given to it: Plaintiff M174 at [29]-[31] per Gageler, Keane and Nettle JJ. The Authority’s reasons do not reflect that it misconstrued the requirements of the provision.

52    In relation to the PTA article, the Authority observed that the article was not referred to in the submission filed in support of the appellant’s case, and therefore any particular purpose or relevance to the appellant’s case had not been identified. The Authority also noted that the article was some years old and recommended the repeal of the PTA. However, it observed that the delegate had more recent information on the PTA than in the article, including that the PTA had been suspended since late 2016, and not used in 2017. The Authority was not satisfied that there were exceptional circumstances within s 473DD(a). No error is apparent in the Authority’s reasoning process.

53    Similarly, the Authority expressly addressed the CAT report, which predated the delegate’s decision. The Authority was not satisfied that report could not have been provided to the delegate. The Authority outlined the opportunities that had been provided to the appellant to do so. The Authority also considered that there were a number of newer reports before the delegate, identifying those reports in its reasons. This included the UN Special Rapporteur’s report dated 14 July 2017 which contained similar observations as those in the paragraph referred to by the appellant in the CAT report. In those circumstances it was not satisfied of exceptional circumstances.

54    This was not a case like BVZ16 at [9], where the Authority confined “exceptional circumstances” in subsection (a) by reference to the matters in subsection (b): BVZ16 at [46].

55    The Authority gave reasons supporting its findings in relation to each document, which included a consideration of the nature and content of the information contained therein.

56    Having analysed the Authority’s reasoning, the primary judge correctly concluded jurisdictional error was not made out in relation to this ground.

57    This ground is dismissed.

Conclusion

58    In respect of grounds 2 and 3 leave to appeal is refused. The appeal is dismissed with costs.

Associate:

Dated:    8 July 2019