FEDERAL COURT OF AUSTRALIA

CPP18 v Minister for Home Affairs [2019] FCA 1115

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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, as an unauthorised maritime arrival, on 16 August 2012. The appellant applied for a Safe Haven Enterprise Visa (SHEV) on 3 March 2017. On 5 July 2017, the Minister’s delegate refused the application. On 2 May 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 29 October 2018 dismissing an application for judicial review of that decision of the Authority: see CPP18 v Minister for Home Affairs & Anor [2018] FCCA 3067.

2    Four grounds of appeal were initially pleaded by the appellant in this Court, although the fourth ground was not pressed. The grounds, as pressed, are as follows (with particulars partially omitted, and recited with any errors as they appeared in the original notice of appeal):

Ground 1

His Honour should have found that the Authority erred in the engagement with the various information/letters (IAA at [10]-[15]) and thereby committed jurisdictional error. His Honour should have the Authority construed "exceptional circumstances" narrowly and misconstrued and misapplied s 473DD of the Act. His Honour should have found the Authority has thereby has thereby committed jurisdictional error.

Particulars

(a) The Authority did not engage with the issue of exceptional circumstances but considered the documents without having first engaging with “exceptional circumstances”.

(b) The Authority has not properly engaged with the issue of exceptional circumstances and/or misconstrued "exceptional circumstances”.

(c) His Honour should have found that the Authority erred as to what constituted new information.

…

(e) The Authority has committed jurisdictional error.

Ground 2

His Honour should have found the Authority’s consideration of the Appellant's role is misconceived (IAA at [50]-[52]) is misconceived and irrational, illogical and unreasonable; it failed to intellectually engage with the Appellant's claims. His Honour should have found that the Authority has thereby has thereby committed jurisdictional error.

Particulars

(a) The Authority is irrational/illogical in the Appellant's role with the LTTE, his activities and major role for LTTE's secretive operations.

(b) The Appellant was shot at whilst involved in LTTE activities.

(c) The Appellant key player for the secretive LTTE activities.

(d) The Authority committed jurisdictional error.

Ground 3

His Honour fell into error in failing to give adequate reasons for his decision.

Particulars

(a) The Appellant says that His Honour did not provide adequate reasons for the decision.

…

(c) His Honour has thereby fallen into error.

3    For the reasons below the appeal is dismissed.

Background

4    Given the grounds of appeal it is appropriate to first consider the basis on which the SHEV application was made, and the information that was before the Minister’s delegate and the Authority.

5    As noted above, the appellant is a citizen of Sri Lanka. He is a Tamil of Hindu faith from the Eastern Province. In summary, the appellant’s claim to fear harm was based on his ethnicity and origin, having a brother-in-law who he says is a Liberation Tigers of Tamil Eelam (LTTE) member which, being a young Tamil male and a returned failed asylum seeker, would impute that profile to the appellant. The appellant also claimed that after being shot at in 2001, a deformity in his leg resulted, which causes an irregular walk, and would make him look suspicious to the Criminal Investigation Department (CID) in Sri Lanka.

6    In addition, on 31 July 2017, by email from his registered migration agent, the appellant provided a written submission and further documents, which he asked the Authority to take into account. These further documents were comprised of four letters: a letter dated 24 July 2017 from the appellant’s brother-in-law, a letter dated 22 July 2017 from a member of the Parliament of Sri Lanka, a letter dated 23 July 2017 from the Human Rights Commission of Sri Lanka (HRCSL) and a letter dated 10 February 2014, together with an English translation from the appellant’s wife (collectively, the Further Documents). These Further Documents purported to support the appellant's claims that he had active involvement with the LTTE, and would be at risk of harm upon his return to Sri Lanka.

The Authority

7    The Authority was not satisfied that there were exceptional circumstances to justify considering the Further Documents.

8    The Authority, like the delegate, accepted that the appellant was forced to assist the LTTE to use his boat to transport LTTE personnel and ammunition. It also accepted that the appellant had been shot in the buttock in the course of transporting a LTTE member on a borrowed motorbike. However, the Authority was not satisfied that the entirety of the appellant's claims relating to his LTTE involvement were true. It found that the appellant had embellished and fabricated parts of his evidence about his LTTE connections in order to boost his claims for protection. In particular, it rejected claims that the appellant transported LTTE men and material frequently, and that his brother-in-law was a member of the LTTE. The Authority also did not consider that the extent of the ongoing monitoring and harassment that the appellant claimed to be subjected to by the CID and Sri Lankan authorities, was plausible on the information before it.

9    In light of the appellant’s profile and country information, the Authority found that the appellant did not face a well-founded fear of persecution in Sri Lanka. It also concluded that the appellant was not a refugee by reason of being a returning failed asylum seeker and used these findings as the basis on which to reject the appellant's claim under the complementary protection criteria.

The Federal Circuit Court

10    The appellant relied on five grounds of appeal, each of which was rejected by the primary judge. Relevantly, as outlined below, two of those grounds are repeated in this Court.

11    Ground 1 alleged jurisdictional error on the basis that the Authority's consideration of the appellant’s role was misconceived and irrational, illogical and unreasonable; and it failed to intellectually engage with the appellant’s claims. This is similar to ground 2 in this Court.

12    His Honour observed that the Authority’s reasons reflected an acceptance of some of the appellant's material claims and a rejection of others on the basis of adverse credibility findings. He listed various factors that led to the Authority’s conclusion in relation to the appellant's claimed role in the LTTE and how that bore on his claims to fear harm. His Honour concluded that those were logical and rational matters for the Authority to take into account and that no legal unreasonableness was established.

13    Ground 2 alleged jurisdictional error on the basis that the Authority had erred in its engagement with the Further Documents; that it failed to properly identify, assess and address whether the letters satisfied “exceptional circumstances”. This is ground 1 in this Court.

14    Although this ground as drafted challenged the Authority’s application of the "exceptional circumstances" test in s 473DD of the Migration Act 1958 (Cth)(Migration Act), the appellant's written submissions in the Federal Circuit Court included an allegation that the Authority erred in treating the Further Documents as "new information" within the meaning of s 473DC. His Honour dealt with that basis of the ground and concluded that the Authority was correct to identify the Further Documents as new information.

15    His Honour also rejected grounds 3, 4 and 5. In relation to grounds 3 and 4, his Honour found that the Authority considered the appellant's claims, to have been shot and to have sustained a gunshot wound, and had genuinely engaged with those claims. These grounds are only relevant to ground 3 in this Court.

Consideration

Ground 1: new information

16    This ground, and its predecessor in the Court below, has changed over time. In light of the grounds of appeal, it is necessary to set out the development of this ground.

17    In the appellant’s written submissions filed in the Court below, this ground contained two aspects: (1) that the Further Documents were not “new information” within the meaning of s 473DC of the Migration Act; and (2) in the event that the Further Documents constituted “new information”, the Authority failed to consider whether exceptional circumstances were established to justify considering this information in accordance with s 473DD of the Migration Act.

18    In oral submissions in the Court below, the appellant did not press the argument in so far as it related to the letter from his wife dated 10 February 2014. Moreover, in oral submissions, the appellant’s counsel, in answer to questions from the primary judge, accepted that his contention was that the other three letters were not new information, and they ought not to have been treated as such. The appellant’s counsel, consistent with the first basis of his written submissions, contended that the remaining three letters supported claims that had already been raised before the delegate. The oral submission in the Court below was confined to that first aspect of this ground, referred to above.

19    In this Court, the ground of appeal and written submissions advanced the two aspects relied on in writing below (as outlined above at paragraph [17]).

20    However, during the oral submissions, counsel for the appellant conceded that the Further Documents were new information, and abandoned any submission to the contrary. That is, the argument in this Court was confined to the second aspect of the ground, namely that the Authority failed to consider whether exceptional circumstances were established to justify considering the new information in accordance with s 473DD of the Migration Act. The appellant’s concession that the letters were new information when they were provided to the Authority, is correct.

21    Also, during his oral submission the appellant’s counsel sought to rely on the letter from the appellant’s wife dated 10 February 2014, which had been abandoned below. Counsel explained that the basis for the change in position was that he had not realised there was an English translation of the letter before the Authority as it was not reproduced in the Court Book. This was an oversight. As this is a new particular not argued below to rely on such evidence that was not before the Court below (the English translation), leave is required. The respondent made no submission about the grant of leave except to point out that merit is an important factor. I will consider this letter, together with the others to determine whether there is merit in the grant of leave.

22    Turning to the merit of the remaining aspect of the ground.

23    Contrary to the appellant’s submission, the Authority did engage with the issues relevant to the admission of new information. There was no misconstruction of s 473DD of the Migration Act.

24    The Authority considered the appellant’s explanations as to why the letters had not been provided to the Minister’s delegate. The Authority noted that while the letters from the Member of Parliament (dated 22 July 2017) and the HRCSL (dated 23 July 2017) post-dated the determination, no explanation had been provided as to why the information contained in the letters had not been provided earlier. The Authority concluded that the explanation in relation to the letter from the brother-in-law (dated 24 July 2017) was at odds with the appellant’s written statement that accompanied his SHEV application. The letter from the appellant’s wife pre-dated the delegate’s decision. The Authority rejected the explanation given for the failure to rely on the letter earlier, on the basis it was implausible that the appellant or anyone else would not consider the letter, which purports to confirm that the Sri Lankan authorities were making enquiries about the appellant, was not relevant to the appellant’s protection claim.

25    Moreover, the Authority also engaged with the content of each letter and found that there were issues in relation to the contents of each, such as to lead it to conclude that it was not willing to attach any weight to them. The Authority articulated these issues in some detail in relation to each of the four letters. As a consequence, as the Authority concluded, the letters did not assist the appellant’s protection claim. This finding was open on the information before the Authority.

26    The Authority also observed that the appellant had been told, inter alia, that he had the responsibility of producing the evidence in support of his claim and that it was extremely important that he provide complete and accurate information as early as possible. At the end of his SHEV interview the appellant confirmed he was satisfied that he had been given an opportunity to present his case. The appellant was told that information that was provided before his claim was decided would be considered. He provided further information.

27    It was after considering all those matters that the Authority concluded that it was not satisfied that there were any exceptional circumstances to justify considering the new information.

28    The appellant’s submission that the authority simply opined that it did not have to consider the information owing to the lateness of its submission is incorrect. The appellant’s reliance on the comments in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 (BVZ16) at [46]-[47] and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16) at [112] is misplaced. This is not a case like BVZ16 or BBS16, where the Authority confined “exceptional circumstances” in subsection (a) by reference to the matters in subsection (b): BVZ16 at [9], [46]; BBS16 at [112].

29    The appellant, during his oral submissions, addressed the individual letters. However, in relation to each letter, the submission did not address the task the Authority had actually undertaken.

30    To give two examples. First, the appellant’s contention (based on paragraph [8] of the reasons) that the Authority did not take into account that the information in the letters was said to relate to the appellant’s life being at stake, is not borne out by a proper reading of that paragraph. There the Authority was addressing the appellant’s argument that because the letters were said to relate to the appellant’s life being at stake, that alone, constituted exceptional circumstances. The Authority rejected that argument and then addressed other considerations. The Authority never said that the appellant’s life being at stake was an irrelevant consideration. Second, as noted above, the Authority assessed the content of each letter. The appellant’s submission ignores that assessment. No satisfactory explanation was provided by the appellant as to why that assessment was not part of the Authority’s consideration of whether exceptional circumstances existed.

31    The Authority, when considering whether the new information satisfied s 473DD(a), took into account "all the relevant circumstances", including those matters in s 473DD(b), as it was required to do: Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16; (2018) 353 ALR 600 at [31] per Gageler, Keane and Nettle JJ, and as illustrated by, AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14]; and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [104]. The appellant has not identified any matter which the Authority was bound to take into account, but did not.

32    This conclusion relates to all four letters and therefore, there is no merit in the submission in relation to the wife’s letter, which forms the basis of the new particular. Granting leave to consider this new evidence, would be futile.

33    The primary judge dismissed this ground of appeal, but his reasons do not address this second aspect of the ground. While the oral submissions made before him by the appellant’s counsel only addressed the first aspect of this ground, the second aspect was addressed in writing and was not abandoned.

34    However, a failure by the primary judge to give adequate reasons on an aspect of the argument does not necessarily lead to the matter being remitted. I will address the consequences of this after the remaining grounds have been considered.

Ground 2: the appellant’s role is misconceived

35    The appellant’s written submission focuses on a complaint relating to the Authority’s finding as to the shooting incident. However, this ground relates more broadly to the role of the appellant within the LTTE, of which, the appellant being shot, is only one particular. A separate ground in the Court below, which focussed solely on the shooting, is not repeated in this Court. The role alleged in the particulars to this ground is that the appellant was a “key player for the secretive LTTE activities”.

36    For the primary judge to find illogicality, irrationality or unreasonableness, his Honour had to be satisfied that the Authority’s finding as to the appellant’s role within the LTTE was not one which a rational or logical decision-maker could reach on the same evidence: Minister of Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130]-[132] per Crennan and Bell JJ, at [78] per Heydon J. To discern irrationality or illogicality more must be shown than that the decision is one upon which reasonable minds may differ: SZMDS at [131], [135] per Crennan and Bell JJ, or that the Court would have exercised the discretion to grant the visa in a different way: Minister for Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 (SZVFW) at [18] per Kiefel CJ, [86] per Nettle and Gordon JJ.

37    As the High Court has observed, the test of legal unreasonableness is necessarily stringent: SZVFW at [11] per Kiefel CJ; and see [51]-[60] per Gageler J, [78]-[87] per Nettle and Gordon JJ, [131]–[135] per Edelman J.

38    While the crux of the Authority’s reasoning as to the appellant’s role does appear in paragraphs [50]-[52] of its reasons, this must be considered in the context of previous references to the information before the Authority and the findings made by it, which are adverse to the appellant’s credibility on this topic.

39    The respondent contends that the appellant’s claims before the Authority never reached the level of having had a major role or being a key player within the LTTE. That submission is correct.

40    The Authority accepted that the appellant was forced to assist LTTE by using his boat to transport LTTE personnel on several occasions over the years, including, that on four occasions he transported members to plant bombs in town, and on one occasion he transported ammunition. However, the Authority rejected the appellant’s claims, made for the first time in his statutory declaration attached to his 2017 application, that he assisted the LTTE by transporting cadres, bombs and ammunition quite frequently. On the basis of evolving and contradictory explanations as to his as to activities with the LTTE (including inconsistencies between his original SHEV interview and later statements), the Authority concluded that the appellant had embellished and fabricated his evidence in this regard to better support his application. On the information before the Authority, those credibility findings were open to it. Having made those findings, it was then open to the Authority to find that the appellant had a limited role with the LTTE when he was forced to assist them by using his boat to transport LTTE personnel (at [50]). That finding is not illogical, irrational or unreasonable.

41    In so far as the appellant focuses on the fact that he was shot, the Authority took that fact into account in reaching its conclusion as to the extent of his role with the LTTE: for example, see [31], [50] and [51].

42    Contrary to the appellant’s submission, the Authority’s reasons reflect that it did engage with the appellant’s claims as to his role with the LTTE. The appellant did not claim he had a key role. More importantly, the Authority rejected the extent of the role he did claim to have.

43    The primary judge also engaged with the appellant’s submissions as to his role with the LTTE.

44    The appellant’s complaint about his Honour’s approach in relation to the shooting incident (at paragraphs [36]-[37] of his judgment) considers those paragraphs in isolation and out of context. Those paragraphs relate to a ground of appeal which alleged that the Authority failed to properly identify the wound as a bullet wound and failed to engage with the types of scars being gunshot scars. Further, while his Honour did make the observation that the complaint in substance was a merits review, he nonetheless addressed the question of whether the Authority had engaged with the argument. He concluded that it had. Moreover, those paragraphs refer back to the summary his Honour had given of the Authority’s reasons, and therefore, they must be read in that context.

45    The Authority found, inter alia, that the Sri Lankan authorities were not aware of the work the appellant performed for the Sri Lankan authorities, and was satisfied that the chance of that information coming to light was remote. It found, on the basis of country information, that scarring and limps are no longer of interest to Sri Lankan authorities when considering suspected LTTE involvement. Accordingly, it concluded that the appellant does not have a profile that on the basis of country information, suggests that he is at risk of harm, now or in the foreseeable future.

46    That conclusion was not irrational or illogical and was based on findings or inferences of fact supported by logical grounds. The primary judge's rejection of this ground is unaffected by error.

47    The appellant has not established ground 2.

Ground 3: inadequate reasons

48    The appellant provided no written submission in support of this ground except to allege that his Honour had given inadequate reasons in respect to matters that were relevant, and that his consideration of the application lacked an adequate connection to the findings of fact and law. No particulars were identified. In oral submissions, the appellant’s counsel complained about paragraph [35] of the decision of the Court below which relates to what is now ground 1 in this Court. In addition, the appellant complained about paragraphs [36]-[37] of the reasons which related to then grounds 3 and 4 (that is, the grounds relating to the appellant’s gunshot wound).

49    It is uncontroversial that adequate reasons must be provided by judicial officers in respect of orders given in the course of the judicial process: CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 (CIT17) at [39].

50    This ground is established. As explained above, and accepted by the respondent, the primary judge’s reasons do not address the second basis of the argument in relation to what is now ground 1. The reasons given by the primary judge dismissing that ground are inadequate. Indeed, the inference to be drawn from the reasons is that the primary judge failed to consider one of the bases on which a ground of appeal was argued.

Conclusion

51    The respondent submitted that despite the failure of the primary judge described above, the appeal should nonetheless be dismissed because there is no jurisdictional error in relation to grounds 1 or 2. Relying on CIT17 at [93], the respondent submitted that it would therefore be futile to remit the matter in those circumstances. The appellant accepted that if the jurisdictional errors alleged in grounds 1 or 2 were not established, consistent with the reasoning in CIT17, there would be no cause to remit the proceedings to the Federal Circuit Court.

52    As I concluded above, ground 2 has not been established. The failure of the primary judge relates only to ground 1. However, as there is no jurisdictional error by the Authority in relation to that ground, the appellant has not suffered any practical injustice from the primary judge’s failure to address a submission, and in those circumstances, a remittal would be futile: see, for example: CIT17 at [93], [94]; Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 at [31], [33].

53    Accordingly, the appropriate order is to dismiss the appeal.

Associate:

Dated:    19 July 2019