FEDERAL COURT OF AUSTRALIA

DJB16 v Minister for Immigration and Border Protection [2019] FCA 1161

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 1.39 of the Federal Court Rules 2011 (Cth), the time prescribed in r 36.24 be extended to 18 April 2019.

2.    Leave be refused to raise new grounds on appeal.

3.    The appeal be dismissed.

4.    The Appellant pay the First Respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

KERR J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA): see DJB16 v Minister for Immigration & Anor [2018] FCCA 3791. The IAA had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (Minister) refusing the Appellant a Safe Haven Enterprise (subclass 790) visa (visa).

2    The Appellant is a Sri Lankan Tamil who arrived in Australia in 2012. The Appellant’s claims as advanced before the Minister’s delegate are set out at [7] of the IAA’s decision. In brief, they are as follows:

    The Appellant had fled to India with his family in about 1994 due to the Sri Lankan civil war. They lived in refugee camps in terrible conditions, and later voluntarily returned to Sri Lanka.

    The Appellant had been detained by the Criminal Investigation Department (CID) and held for one day on suspicion of involvement with the Liberation Tigers of Tamil Eelam (LTTE). His employer at the time had paid for his release.

    On a number of occasions during the civil war the Sri Lankan army had shot Tamils in front of the Appellant’s tailor shop following bomb blasts. The Appellant fled to avoid persecution and had frequently returned to find that his shop had been looted.

    More recently, the CID, police, and various paramilitary groups had forced the Appellant to provide tailoring services for free on threat of violence.

    The Appellant’s tailoring business had become successful, and that success was well-known. He received phone calls demanding money and blank cheques and threatening to kill him if he did not comply. The Appellant believed the threats were made by paramilitary groups who frequently extorted Tamils in Sri Lanka; or the authorities, who might target him because he is a wealthy Tamil.

     Before the Appellant left Sri Lanka, the Eelam People’s Democratic Party (EPDP) demanded that he provide two blank cheques. The Appellant had produced the cheques, which had then bounced as there were insufficient funds in his account. The owner of the store at which the cheques were used commenced legal proceedings against the Appellant.

    Allegations had been made that the Appellant had been involved with the LTTE and that he had tailored clothes for them and received payments. The authorities continue to attend his house, question his family, and search for him.

    The Appellant had been targeted by the Sri Lankan authorities because of a skin condition causing roughened skin on his elbows and knees resembling the scarring that LTTE fighters and members of “suicide squads” often have.

    The Appellant fears that he would be jailed or killed if returned to Sri Lanka. The authorities oppress Tamils and he will face additional difficulties because of his wealth. He has been harassed, threatened and abused because he has been running a successful business, which prevents him from living a normal life.

    The Appellant left Sri Lanka illegally and will face arrest and severe punishment upon return.

3    On 1 August 2016, the Minister’s delegate refused to grant the Appellant a visa. That decision was automatically referred to the IAA for review as a “fast track reviewable decision” pursuant to Pt 7AA of the Migration Act 1958 (Cth) (Act). The Appellant was advised that the IAA’s review would be conducted on the material that had been before the Minister’s delegate, and that new information would only be considered in exceptional circumstances. The Appellant was advised that any new information needed to be provided with evidence of the exceptional circumstances justifying its consideration, and that the IAA would then decide whether or not exceptional circumstances existed.

4    Submissions were subsequently provided to the IAA, together with “new documents”. The IAA reasoned at [4] that, to the extent the submissions were directed to the decision of the Minister’s delegate, they were not new information. The IAA thus considered the submissions.

5    With respect to the “new documents”, the entirety of the IAA’s consideration was as follows:

5.    The submissions also contained information in the form of a medical certificate dated 8 February 2016, a scanned Sri Lankan arrest warrant dated 20 December 2012, and bank statements from October 2011 and December 2011. I am satisfied that this is new information that was not before the delegate.

6.    The applicant and his representative have not provided any reason why the IAA should consider the new information under s.473DD. I note that the information predates the delegate’s decision. I am not satisfied that the information could not have been provided to the Minister before the decision was made, nor am I satisfied that s.473DD(b) is met. Considering all the circumstances, I am also not satisfied that there are exceptional circumstances to justify considering the new information.

6    The IAA considered the Appellant’s claims with respect to his tailoring business at [17]-[34]. At [23], the IAA noted that the submission provided to the IAA expanded on the Appellant’s claims regarding blank cheques:

… The applicant indicated that he issued many post-dated cheques while he was doing business in Sri Lanka. After he left the country, many cheques were dishonoured (because there were insufficient funds available to clear the cheques). He claims there are currently many complaints against him because of the dishonoured cheques and he will face serious harm from the authorities and from the debtors as well if he returns to Sri Lanka.

7    At [24]-[25], the IAA concluded that the claims relating to the Appellant’s tailor shop and interactions with various groups were implausible and lacking in detail. It noted that the Appellant claimed that “over six highly distinct political, military, paramilitary, and security groups approached him in the past and either threatened him or forced him to provide free tailoring services, materials or clothing” and that, when pressed for specifics, the Appellant had provided little detail. The Appellant had not given details of when the incidents occurred, how he was threatened, or how frequently.

8    At [26] the IAA concluded:

Each of these factors considered together leads me to conclude that he has fabricated these claims to have been threatened and extorted by these groups. I reject his claims that he was threatened by each of these groups with violence, and forced to provide services, or had products taken from him, without payment. I also do not accept he had any violent interactions with the CID or other group when they took his goods. As I do not accept he was ever threatened with violence, I also do not accept his claim that he provided blank cheques to the EPDP or any other group or person on one or more occasions. As a result, I do not accept the applicant faces any consequence from the fraudulent use of those cheques. I find instead, based on his own evidence, if he does in fact have problems with dishonoured cheques in Sri Lanka, this stems from his own practice of post-dating cheques to his suppliers when he did not have sufficient funds in his account to service those payments following his departure from Sri Lanka.

9    The IAA noted the inconsistencies in the details of the threatening phone calls that the Appellant gave during his interview with the Minster’s delegate. At [30], the IAA found that the Appellant’s evidence about the telephone threats was inconsistent and unconvincing. It noted that his evidence about the type of harm threatened, the number of calls, the timing of the calls, and the point at which he decided that the threats were serious enough that he applied for a passport to leave Sri Lanka. The IAA also rejected as implausible that the Appellant was so concerned by the threats that he would abandon his successful business and pregnant wife and leave Sri Lanka, without actually identifying who was making the calls.

10    The IAA concluded:

31.    Viewed separately, each of these concerns many not have necessarily undermined his claims, but viewed together, along with his other evidence that has led me to question his credibility, I find that the claims relating to the phone calls and threats of extortion are fabrications, including any earlier threats. I do not accept they occurred, nor do I accept there is any residual threat to the applicant as a result of these claims.

…

33.    I accept the applicant may have post-dated a number of cheques, and that there may be one or more active court cases or debtors in Sri Lanka. In the submission to the IAA, the applicant claims he will face serious harm from the authorities and from the debtors as well. The applicant and his representative have provided no other details, evidence or country information in support of these concerns, and have made no submissions beyond an unsupported claim that he would suffer serious harm. The country information before me indicates that Sri Lanka has a functioning, albeit imperfect judiciary. There is no claim or evidence before me that any applicable laws would be discriminatory on their terms, nor is there anything that indicates that the applicable laws would be applied in a discriminatory manner or be selectively enforced. Ultimately, while I accept that the applicant may need to face the consequences of his actions on return to Sri Lanka, there is nothing before me that indicates that there is a real chance of him being seriously harmed on return to Sri Lanka for these reasons.

11    The IAA accepted that the Appellant had been a “reasonably well off” business owner. It accepted that extortion had been an issue in Sri Lanka in the past, but noted that the most recent country information contained almost no reference to it, and that “wealth based groups are not currently indicated as a risk group in the more recent reports” (at [32]). The IAA concluded that the chance the Appellant would be targeted for extortion or other serious harm as a wealthy Tamil business owner is remote.

12    The IAA accepted as plausible that the Appellant has a serious skin condition that could be confused with combat scarring, and that it may have been the reason he was targeted for questioning several times during the civil war. However, it did not accept that the authorities would consider he had belonged to an LTTE suicide squad, or that he would face any risk on that basis in the future. The IAA considered that if his skin condition raised such concerns, he would be able to demonstrate that it was a medical condition and not scarring.

13    The IAA considered the other claims raised by the Appellant and concluded that there was no real chance he would be seriously harmed on return on the basis of his ethnicity; any actual or imputed link to the LTTE; being a Tamil from the north; as a wealthy Tamil business owner; for any reason relating to his business; or as a result of having departed illegally and seeking asylum in Australia. The IAA therefore concluded that the Appellant did not satisfy s 36(2)(a) of the Act.

14    The IAA also concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that the Appellant would suffer significant harm. The Appellant therefore did not satisfy s 36(2)(aa) of the Act.

15    The IAA affirmed the decision of the Minister’s delegate.

The primary judge’s decision

16    The amended ground of review pursued before the primary judge was as follows:

1.    The Immigration Assessment Authority (“the IAA”) constructively failed to exercise jurisdiction by not properly applying the test set out in section 473DD of the Migration Act 1958 (“the Act”).

Particulars

1.1    The applicant provided to the IAA a medical certificate, an arrest warrant and bank statements which the IAA was satisfied at paragraph [5] was new information (“the new information”).

1.2    It was implicit in the characterisation of the new information that it was relevant to his claims.

1.3    The IAA was required by section 473DD of the Act to form a state of satisfaction as to:

1.3.1    whether exceptional circumstances existed to justify considering the new information, and;

1.3.2    whether the new information, had it been known, may have affected the consideration of the applicant’s claims.

1.4    The IAA erred in not accepting the new information was credible personal information not previously known to the delegate.

1.5    The IAA failed to consider the second limb to section 473DD(b)(ii), in not turning its mind to whether the new information may have affected the consideration of the applicant’s claims.

1.6    In so doing, the IAA constructively failed to exercise the jurisdiction imparted upon it in section 473DD.

17    The primary judge’s discussion of those grounds was as follows:

22.    The plain language of [s 473DD of the Act] mandates that conditions (a) and (b) are cumulative or conjunctive with each other. This means that the information must satisfy the IAA that there are exceptional circumstances to justify considering it AND it must also be information that could not have been given to the Minister before the Minister made the decision, or it must be credible personal information which could have affected the consideration of the claims.

23.    From paragraph 6 of the decision and reasons, it is clear that the IAA looked at the factors in condition (b) first. While the IAA does not go into detail as to why it was not satisfied, it is plain that it considered the question and [came] to the conclusion that they were not satisfied that it was credible personal information.

24.    Even if there were some error because the IAA did not actually say that it had considered whether the information could have affected the consideration of the claims, unless the information was credible personal information, subsection (b)(ii) could not be met.

25.    Even if one of the alternatives in subsection (b) had been met, the IAA was quite clear that it was not satisfied that there were exceptional circumstances to justify considering the new information, in other words, condition (a) had not been met.

26.    Such a finding was open on the evidence. Having made that finding, the IAA was precluded from considering that new information because there were no exceptional circumstances.

18    His Honour was, for those reasons, satisfied that the IAA had properly construed s 473DD of the Act and that jurisdictional error had not been made out. The application for review was dismissed.

The Appeal

19    On 16 January 2019 the Appellant appealed the primary judge’s decision to this Court. The grounds contained in the Appellant’s notice of appeal are as follows (unaltered):

1.    The decision of the Federal circuit court is affected by jurisdictional error

Particulars

  a.    By taking into account irrelevant considerations.

  b.    By not taking into account relevant considerations.

  c.    By not taking into account the relevant country information.

d.    By agreeing with the IAA that it had asked a reasonable number of questions in order to ascertain the applicant’s credibility and making a fair decision.

e.    By not finding the applicant met the provisions of complementary protection.

20    When this appeal came before me on 7 May 2019, the Appellant made an oral application for an adjournment on the basis that he had made an application to JusticeNet for pro bono legal assistance in the appeal. Following a short adjournment, it became clear that the Appellant’s application to JusticeNet had been declined. I refused the Appellant’s application for an adjournment but, with the consent of the Minister’s counsel, Mr O’Leary, I made orders granting the Appellant leave to file and serve any supplemental submissions. I also gave the Minister leave to file and serve responsive submissions.

The Minister’s interlocutory application

21    On 18 April 2019, the Minister filed a notice of contention. Pursuant to r 36.24 of the Federal Court Rules 2011 (Cth) (Rules), a notice of contention must be filed within 21 days of service of the notice of appeal.

22    By interlocutory application filed on 24 April 2019, the Minister seeks orders that, pursuant to r 1.39 pf the Rules, the time prescribed in r 36.24 be extended to 18 April 2019. In support of his application, the Minister relies on an affidavit of Natalia Milutinovic of Sparke Helmore Lawyers. Ms Milutinovic deposes that, although filed on 16 January 2019, the notice of appeal was not served on the Minister by the Appellant. On 1 February 2019, Ms Milutinovic received an email from the Court attaching the notice of appeal, supporting affidavit, and a sealed copy of the directions made by a Registrar of the Court. That same day, Sparke Helmore Lawyers was instructed to act for the Minister in the appeal. Ms Milutinovic deposes that she provided initial advice and sought the advice of counsel, and was instructed to file the notice of contention on 18 April 2019. She did so that day, and served a copy on the Appellant.

23    Rule 1.39 simply provides that the Court may extend or shorten a time fixed by the Rules or by order of the Court, either before or after the expiration of time; and whether or not an application is made prior to the expiration of time.

24    It is well established that r 1.39 allows a court to extend time in order to avoid injustice to the parties: see Brookfield v Capital Finance Australia Ltd [2012] FCA 415 per Cowdroy J at [7]. The Court’s discretion to extend time is unconfined, but relevant considerations include the length of the delay; the explanation for the delay; the prospects of success if an extension of time were granted; and any prejudice a respondent might suffer if the extension were granted: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 per Wilcox J at 348-349; Mentink v Minister for Home Affairs [2013] FCAFC 113 per Griffiths J at [32]-[39] (Edmonds J agreeing).

25    The delay in question is some two months. That is not an insignificant length of time. The affidavit of Ms Milutinovic filed in support of the Minister’s application to extend time merely sets out the timeline of Sparke Helmore being instructed in this appeal and the advice given to and by counsel. It does not illuminate why the Minister did not instruct Sparke Helmore to file a notice of contention prior to the expiration of time under r 36.24.

26    As a self-represented litigant, the Appellant is not well-placed to make submissions on any prejudice he would suffer if the extension of time were granted. Nevertheless, I do not think that the notice of contention gives rise to any such prejudice given the issues it raises. The notice of contention is responsive to the Full Court decision in Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 162 ALD 427 (CQW17), and properly puts in issue matters that ought to be considered in this appeal.

27    For those reasons, in my view it is in the interests of justice in the circumstances of this appeal to exercise the discretion in r 1.39 of the Rules to extend the time prescribed in r 36.24 to 18 April 2019.

Leave to advance new grounds on appeal

28    The grounds now advanced by the Appellant were not pressed before the primary judge, where the Appellant was represented by solicitors and counsel. The issue then in dispute had been whether or not the IAA had constructively failed to exercise its discretion by misapplying s 473DD of the Act in respect of the “new information” provided on behalf of the Appellant.

29    The Minister submits that the Appellant’s notice of appeal contains an assertion of jurisdictional error arising from five unparticularised errors and that the appeal is liable to be dismissed on the basis that the Appellant has failed to identify the asserted errors with sufficient particularity, coupled with his failure to provide further details or submissions in support of the alleged errors. In that regard, the Minister cites SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 per Reeves J at [21]; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 per Gilmour J at [35]; and AYE16 v Minister for Immigration and Border Protection [2018] FCA 108 per Barker J at [37].

30    The Minister further submits that the Appellant requires leave to advance new grounds on appeal, and any such application for leave is opposed.

31    The Minister submits that the relevant question in determining whether to grant leave to run new grounds of appeal is whether it is expedient in the interests of justice for such leave to be granted (citing Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 per Griffiths and Perry JJ at [19]-[20] and PXYJ v Minister for Home Affairs [2018] FCAFC 193 per Barker, Banks-Smith and Colvin JJ at [12]-[15]).

32    The Minister acknowledges that protection claims under s 36(2) of the Act raise special considerations, as set out in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 per Kiefel, Weinberg and Stone JJ at [46]-[48], NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 per Madgwick J at [163]-[166] and Conti J at [229] and Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [22]-[24]. However, countervailing considerations weigh against the grant of leave in the present case. First, the notice of appeal contains unparticularised bare assertions of error and is without merit, and as a result it stands to be dismissed. Second, the Appellant had the benefit of legal representation before the Minister’s delegate and the IAA, and was represented by a solicitor and counsel before the primary judge. Third, the Minister submits that the issues advanced at first instance were confined and focused, no doubt the result of a forensic decision by the Appellant’s then representatives, which he cannot now disclaim. Fourth, the broad public interest in efficient judicial administration weigh against the grant of leave.

33    At [35]-[38] of his written submissions, the Minister makes submissions on the merits of the proposed new grounds of appeal:

35.    As to particulars (a) and (b), there is no identification of the “irrelevant” consideration said to have been taken into account, or the “relevant” consideration alleged to have been overlooked. It is axiomatic that the relevancy/irrelevancy ground of review is to be determined by reference to the statutory text: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73]-[74] (McHugh, Gummow and Hayne JJ). There is nothing to indicate that either the FCC or the IAA failed to consider a mandatory relevant consideration or took into account a matter precluded by the statute. Accordingly, these aspects of the ground of appeal are not made out and must be dismissed.

36.    With respect to particular (c), apart from the fact that the appellant does not identify the relevant country information that he asserts was relevant, it is well settled that the country information to which the AAT has regard and the weight it gives that information is a matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. The same reasoning applies to the IAA: BPC16 v Minister for Immigration and Border Protection [2018] FCA 920 at [60]-[61] (Kerr J). Accordingly, this particular is not made out.

37.    Particular (d) is misconceived; the FCC did not “agree” with the IAA in respect of the matters there identified. That being so, this aspect of the ground of appeal must be dismissed. Likewise, particular (e) proceeds on the misconception that the FCC made any finding about complementary protection. In any event, no basis is provided to support the assertion that the finding under s 36(2)(aa) is tainted by jurisdictional error.

38.    For the above reasons, if the hearing proceeds on the notice of appeal it should be dismissed, with costs.

(Footnotes omitted.)

34    I accept those submissions. It is well settled that the predominant consideration in an application for leave to advance new grounds on appeal is the merits of the proposed grounds. For the reasons the Minister advances, which I have accepted, the grounds contained in the Appellant’s notice of appeal have no prospects of success. I decline to grant leave for the Appellant to rely on grounds not previously advanced.

35    In consequence of my conclusion that I should not permit the Appellant to rely on the grounds he has advanced as were not before the primary judge, I find that his notice of appeal is deficient in failing to disclose any error asserted to have been made in the primary judge’s determination of the grounds of review raised before his Honour.

36    However, the Minister makes no submission that I should proceed by dismissing the appeal at that point. To the contrary, the Minister relies upon a notice of contention, on the premise that it would be open to the Court to construe the Appellant’s grounds of appeal as encompassing those grounds that were raised at first instance. The Minister does not oppose the Court taking that course, and given that the Appellant is not legally represented, the Court is prepared to proceed in that manner. The remaining ground of appeal, as pursued before the primary judge, is that the IAA misapplied s 473DD of the Act with respect to bank statements, a medical certificate, and an arrest warrant.

37    For convenience, and given the issues raised, I will consider the Minister’s notice of contention together with the appeal grounds as pursued before the primary judge.

The remaining ground of appeal and the notice of contention

38    The ground that remains before this Court is as raised before the primary judge, namely, that the IAA erred in misapplying s 473DD of the Act in relation to:

    the medical certificate dated 8 February 2019;

    the arrest warrant dated 20 December 2012; and

    bank statements from October 2011 and December 2011.

39    The Minister’s notice of contention is in the following terms:

1.    The Orders of the Federal Circuit Court should be affirmed (and the appeal dismissed) on the basis that the asserted jurisdictional error arising from the Immigration Assessment Authority’s (Authority) treatment of the three pieces of “new information” under section 473DD of the Migration Act 1958 (Cth) was not material to the outcome because even if the “new information” had been taken into account on review, there was no realistic possibility that it could have resulted in a different outcome in circumstances where:

Bank statements

1.1    The bank statements were provided to the Authority to support the claim that the appellant was a wealthy Tamil business man and was targeted for that reason, but the Authority had accepted that aspect of the claim on the review (see AB 172, [32]);

Medical certificate

1.2    The medical certificate was provided to support the appellant’s claim that he had a skin condition and the Authority accepted that fact (AB 173, [39]-[40]); and

Arrest warrant

1.3    The arrest warrant was provided to support the claim that the appellant was at risk of harm from authorities and debtors and the Authority accepted “that there may be one or more active court cases or debtors in Sri Lanka” (AB 172, [33]) but was not satisfied that there was a real chance of the appellant being seriously harmed on return to Sri Lanka in any event (see AB 172, [33]).

The Appellant’s submissions

40    At the hearing, the Appellant submitted that he had been unwell and was referred to a psychologist and alcohol counselling. He experienced suicidal thoughts and was referred to a psychiatrist. He was distressed because he was unable to see his newborn child. He also suffered from skin conditions and had been advised not to work because of a growth in his heart.

41    Following the hearing of the appeal, the Appellant filed supplementary submissions, and an affidavit with two annexures.

42    The Appellant’s supplementary written submissions were as follows:

2.    Certain additional information in the nature of bank statements, medical certificate and arrest warrant were produced before the IAA, which are credible personal information not known to the applicant till that stage and it also satisfies exceptional circumstances.

3.    The IAA in para 6 refused to consider the same on the ground that “the applicant and the [sic] his representative have not provided any reasons as to why the IAA should consider the new information under s473DD”. Further the IAA it its order states that the information predates the delegates [sic] decision and summarily dismisses the new information on the ground that it is not satisfied that exceptional circumstances exist to consider the new information.

4.    It is submitted that the primary reason of [the] IAA in rejecting the new information was due to the fact that there was no submission or reasons stated by my then representative in relation to the new information. It is submitted that apart from paraphrasing the contents of s 473DD there seems to be no valid reasoning by the IAA, it is submitted that the IAA “did not apply or engage in active intellectual process while dealing with the new information “as observed by the learned judges in [Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 162 ALD 427] at para (28, 29, 47 & 48).

5.    Further the scope of exceptional circumstances [has] been very narrowly construed by the IAA in its decision

6.    The non application of mind by the IAA in relation to the admission of the additional information cannot be cured by the fact that the reasons for the conclusion in rejecting my protection visa application will not be change[d]. In fact arrest warrants pending on account of false cases will alert the police and immigration authorities the moment I land in Sri Lanka and I will be interrogated in depth by using third degree methods in relation to my association with LTTE and also the whereabouts of my brother who was in charge of clearing the landmines laid by LTTE in certain LTTE controlled area.

7.    Further [the] IAA [failed] to consider the correct social group to which I belong which among others include “an associate of LTTE with arrest warrants pending to be executed in connection with false case initiated by the Sri Lankan authorities”.

8.    I request the Honourable Court to show mercy and render justice.

43    The Appellant’s affidavit deposed that additional information provided to the IAA was relevant to his case, and was credible personal information not known to him until that time. He deposed that there were exceptional circumstances to justify consideration of the information in relation to his visa application. The Appellant deposed that his family had received an additional arrest warrant in his name in March 2019 in relation to the false case filed against him in Sri Lanka. The Appellant annexed a copy of that arrest warrant to his affidavit, together with a medical certificate setting out a number of conditions the Appellant has been diagnosed with, dated 16 May 2019, and a letter referring the Appellant to a psychiatrist, dated 11 October 2016.

The Minister’s submissions

44    The Minister’s initial written submissions are as follows:

39    The first respondent has filed a notice of contention that speaks directly to the decisions of the IAA and the FCC concerning the new information provided to the IAA after the delegate’s decision. The notice of contention is premised on a conclusion that the IAA’s decision under s 473DD manifests jurisdictional error, and the FCC’s conclusion in respect of the IAA’s decision in that respect is erroneous.

40    To be clear, the first respondent proceeded in the FCC on the basis that the finding of the IAA under s 473DD(a) was open on the material, despite the paucity of reasoning underlying the IAA’s conclusion in that respect. The first respondent maintains that the finding under s 473DD(a) was open on the material, given the want of any explanation by the appellant’s representative as to the exceptional circumstances that warranted the IAA receiving that information after the delegate’s decision. Nevertheless, despite the fact that the IAA is under no obligation to give reasons for a procedural decision under s 473DD (see BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365, CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [29] and CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404 at [39]), there is clear authority, handed down after the hearing of the FCC in this case, that an absence of reasoning in the IAA’s decision may give rise to an inference that the IAA failed to engage in an active intellectual process when considering the new information under s 473DD: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [39] (McKerracher, Murphy and Davies JJ). Because the IAA’s reasoning in this case is brief, the first respondent accepts that it may give rise to an inference of the type identified in CQW17 at [39]. Accepting that possibility, the first respondent presses the notice of contention.

41    An error will not be a jurisdictional error unless it is “material”. And an error will not be “material” unless there is “realistic possibility” that it could have resulted in a different outcome: SZMTA at [48] (Bell, Gageler and Keane JJ). In this case, the first respondent submits that even if the new information had been admitted as material on the review, there was no “realistic possibility” that it could have resulted in a different outcome. So much is evident by examining the IAA’s decision relevant to each piece of the new information sought to be put before the IAA on the review.

42    Bank statements: The bank statements were provided to evidence that the appellant was a wealthy Tamil business man and was targeted for that reason: AB 150 [3]-[5]. However, as noted above, the IAA accepted that claim. That is, the IAA proceeded to evaluate the appellant’s protection claims on the basis that he “is a reasonably well off …business owner”: AB 172 [32]. Hence, the bank statements have no work to do on the review; the bank statements have no utility given the IAA’s acceptance of that aspect of the appellant’s narrative in support of his claim.

43    Medical certificate: Likewise, the medical certificate would not have assisted the appellant because the IAA accepted that the appellant had the relevant skin condition and accepted that he was (mistakenly) considered to have been involved in combat: AB 173 [37], [39]-[40]. Therefore, this piece of new information could have not have assisted the appellant.

44    Arrest warrant: The purported arrest warrant is in a similar category. Relevantly, the IAA accepted “that there may be one or more active court cases or debtors in Sri Lanka”: AB 172 [33]. That being so, the IAA proceeded to evaluate the related claim that the appellant would be at risk of harm from the authorities and debtors. The IAA noted that there was no further evidence provided to support the claim that the appellant would face such harm: AB 172 [33]. The IAA went on to conclude that “[u]ltimately, while I accept that the applicant may need to face the consequences of his action on return to Sri Lanka, there is nothing before me that indicates there is a real chance of him being seriously harmed on return to Sri Lanka for these reasons”: AB 172 [33]. Therefore, it is clear that admitting the arrest warrant by itself would not have bridged the gap in the evidence that the IAA identified; it would not have assisted the appellant to demonstrate that he would be harmed if here were arrested. Hence, the arrest warrant does not have any utility either.

45    In light of the above, even if there was a failure on the part of the IAA under s 473DD of the Act and further, that the “new information” had been accepted on the review under Part 7AA, there is no jurisdictional error because there is no realistic possibility that if the errors in relation to s 473DD had not been made, the outcome could have been different for the appellant.

45    At the hearing of this appeal, Mr O’Leary of counsel submitted the duty of an appeal court is to determine whether the decision below is correct, citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713. Accordingly, it would be open to the Appellant to challenge the decision below on the basis that the primary judge erred in considering the grounds of review then advanced. Mr O’Leary otherwise relied upon his written submissions.

46    The Minister filed supplemental submissions on 20 June 2019 in response to the Appellant’s post-hearing submissions. The Minister noted that the Court did not grant the Appellant leave to adduce further evidence, and formally opposing the receipt of that evidence. The Minister further submitted that the evidence would not assist the Appellant for the reasons identified in the Minister’s initial written submissions, particularly at [39]-[45].

47    The Minister submitted as follows:

3.    Relevantly, the IAA evaluated the appellant’s claims on the basis that he was a reasonably well-off business owner, as well as the related claim that the appellant was at risk of harm from authorities on the basis of active court cases in Sri Lanka. The question is whether the arrest warrants could have had a material effect on the IAA’s review. For the reasons identified in the first respondent’s primary submissions, the answer to that question is “No”.

4.     In its reasons, the IAA stated: “that there may be one or more active court cases or debtors in Sri Lanka”: AB 172 [33]. The IAA then proceeded to evaluate the related claim that the appellant would be at risk of harm from the authorities and debtors if arrested. However, the IAA noted that there was no further evidence provided to support the claim that the appellant would face such harm: AB 172 [33]. The IAA went on to conclude that “[u]ltimately, while I accept that the applicant may need to face the consequences of his actions on return to Sri Lanka, there is nothing before me that indicates there is a real chance of him being seriously harmed on return to Sri Lanka for these reasons”: AB 172 [33]. As was submitted in the respondent’s primary submissions on the appeal, admitting the arrest warrant to the review would not have bridged the gap in the evidence that the IAA identified because it would not have assisted the appellant to demonstrate that he would be harmed if he were arrested. Hence, the further arrest warrant that is sought to be adduced has no utility; it cannot assist the appellant’s substantive case that he was at risk of harm if he were arrested.

Reply to other submissions

5.     There are three other discrete aspects of the ASWS [being the Appellant’s supplementary written submissions] that warrant brief reply.

Active intellectual engagement of the IAA

6.     At [4] of the ASWS, the appellant asserts that the IAA failed to engage in an active intellectual process when discharging the statutory task under s 473DD of the Migration Act 1958 (Cth) (Act), relying on Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [39] (McKerracher, Murphy and Davies JJ). The first respondent referred to this case at [40] of his primary submissions on the appeal and accepted that the IAA’s reasoning in this case was brief. It was for that reason that the first respondent pressed the notice of contention, submitting that any such error could not assist the appellant because the new information sought to be relied upon was not material to the IAA’s decision, applying Minister for Immigration and Border Protection v SZMTA (SZMTA) (2019) 93 ALJR 252 at [45]-[48]. The ASWS do not address the materiality of the asserted error beyond the bald assertion at ASWS [6] that “the non application of mind by the IAA in relation to the admission of the additional information cannot be cured by the fact that the reasons for the conclusion in rejecting my protection visa application will not be change[d]”. That assertion is not responsive to the problem posed: it is because the alleged error is immaterial that the error cannot be jurisdictional. That is the essence of the reasoning in SZMTA at [45]-[48]. Accordingly, the appellant has not made a submission that requires a response beyond that provided by the first respondent in the primary submissions at [41]-[45]. Accordingly, the first respondent relies on the primary submissions in respect of this aspect of the appellant’s case.

Narrow conception of “exceptional circumstances”

7.     At [5] of the ASWS, the appellant asserts that the scope of “exceptional circumstances has been very narrowly construed by the IAA in its decision”. The first respondent addressed this issue at [40] of the primary submissions. The first respondent accepted that there was a paucity of reasoning underlying the IAA’s conclusion in respect of the “new information”. However, the finding under s 473DD(a) was open on the material given the want of any explanation by the appellant’s representative as to the exceptional circumstances that warranted the IAA receiving the information after the delegate’s decision. That is an orthodox conclusion; in the absence of any explanation as to why the circumstances are “exceptional”, it was open to the IAA to have regard to the lack of explanation. That, of course, is different from the IAA concluding that the circumstances cannot be exceptional unless there is an explanation, but that is not how the IAA reasoned in this case.

8.     Further, and in any event, the ASWS do not advance his case in a manner that answers the notice of contention as to the lack of materiality attending the asserted error. Accordingly, if it is necessary for the first respondent to rely on the notice of contention, the first respondent relies on the primary submissions in this regard.

Social group – new claim

9.     At [7] of the ASWS, the appellant makes a new claim. This claim asserts a failure to consider the correct social group to which the appellant belonged. There are two fundamental difficulties with this submission.

10.     First, the submission does not relate to an existing ground of appeal (which “grounds” were unparticularised, as noted in the first respondent’s primary submissions). There has been no suggestion in earlier proceedings that there has been a failure by the IAA to identify the correct social group as defined in s 5L of the Act. The appellant should not, at this late stage, post-hearing, be permitted to raise new grounds.

11.     Second, the asserted error could not assist the appellant. The IAA accepted that, during the conflict, the appellant was forced to provide money and/or material support to the LTTE, but did not accept that past involuntary support gave the appellant a profile that would place him at risk as a person connected and/or associated with the LTTE; see AB 174 [43]-[44]. Accordingly, the primary finding of the IAA renders the alleged error irrelevant. The protection claims advanced by the appellant – even if couched in terms of the asserted social group to which he now claims membership – were rejected by the IAA. Put shortly, the IAA rejected that the appellant was an “associate of the LTTE”. Hence, even if the error occurred (which is denied), it could not assist the appellant.

48    The Minister accordingly submitted that the Appellant’s supplementary submissions did not identify an error in the primary judge’s or the IAA’s reasons and the appeal should be dismissed with costs.

Consideration

Misapplication of s 473DD of the Act

49    As set out in s 473DB of the Act, a fast track review is to be conducted by the IAA having regard only to the material provided to it pursuant to s 473CB, without accepting or requesting new information and without interviewing the referred applicant. Section 473DD contains the following exception:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

50    The requirements of s 473DD are cumulative; both (a) and (b) must be satisfied before the IAA can consider the new information: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 at [31] and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at [102].

51    In CQW17, McKerracher, Murphy and Davies JJ held at [39]:

Consideration of a representation or submission by a decision-maker requires an “active intellectual process directed at that representation or submission”: Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 462-3 per Black CJ; AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 at [31] per Moshinsky J. The Authority’s restatement does not show any real consideration in the sense of an “active intellectual process” directed at the material.

52    The Minister is correct to acknowledge that the paucity in the IAA’s reasoning with respect to s 473DD of the Act might expose it to a finding of jurisdictional error. The totality of its consideration of s 473DD was as follows (at [6]):

The applicant and his representative have not provided any reasons why the IAA should consider the new information under s.473DD. I note that the information predates the delegate’s decision. I am not satisfied that the information could not have been provided to the Minister before the decision was made, nor am I satisfied that it is credible person information which was not previously know. I am not satisfied that s.473DD(b) is met. Considering all the circumstances, I am also not satisfied that there are [no] exceptional circumstances to justify [consideration of] the new information.

53    The IAA did not articulate its reasons for deciding that s 473DD was not met. Its reasons at [6] are entirely conclusory. I accept that the IAA was not in a position to be satisfied that the new information was not, and could not have been provided to the Minister prior to the making of the decision under s 65 of the Act (as required by s 473DD(b)(i)) absent any submission or explanation from the Appellant. The IAA’s conclusion that it was unsatisfied that the new information was “credible personal information which was not previously known” demonstrates no active intellectual engagement with s 473DD(b)(ii). Similarly, the final sentence of that paragraph asserts that the IAA considered all the circumstances in concluding that there were no exceptional circumstances that would satisfy s 473DD(a), however no such consideration of “all the circumstances” is revealed.

54    Applying the authority of CQW17, it is clear that the IAA fell into error in failing to engage with the test contained in s 473D in any meaningful way.

55    An error of that nature is jurisdictional if there is a realistic possibility that it could have resulted in a different outcome: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 per Kiefel CJ, Gageler and Keane JJ at [25] and [30] and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252. I therefore turn to consideration of the three items that were not considered by the IAA.

Bank statements

56    The Appellant provided his bank statements in order to support his claim that he was a wealthy Tamil business owner who had previously been targeted in Sri Lanka by the authorities and paramilitary groups, and that he would face persecution on return to Sri Lanka on that basis. Such is clear from the submission made to the IAA on behalf of the Appellant (AB150 at [3]-[5]).

57    However, I do not accept that, had a meaningful engagement with s 473DD of the Act led the IAA to have regard to the bank statements, a different outcome might have been reached. Despite its observation that the Appellant’s evidence as to his wealth had been somewhat inconsistent, the IAA accepted that the Appellant was “reasonably well off as a business owner” (at [32]). It accepted that extortion had been a serious issue in Sri Lanka in the past and that there was still some evidence that paramilitary groups that had previously engaged in extortion are still criminally active in Sri Lanka, the most recent country information contained almost no reference to the crime, and wealthy persons were not indicated as at risk of harm. The IAA therefore concluded that the chance the Appellant would be targeted for extortion or other serious harm as a wealthy Tamil business owner is remote.

58    Given that the IAA reached that finding despite having accepted that the Appellant was somewhat wealthy, it is untenable that it might have reached a different conclusion had it considered the Appellant’s bank statements.

Medical certificate

59    I accept the submissions advanced on behalf of the Minister that, with respect to the medical certificate, no materiality flows from the IAA’s error. The IAA accepted that the Appellant had a skin condition that caused roughened knees and elbows, and that this may have caused him to be targeted as a suspected LTTE fighter or member of a “suicide squad” during the civil war (at [37] and [39]). However, the IAA concluded that the Appellant’s profile was not one that would cause him to be suspected of having fought for the LTTE, and if any such issue arose, the Appellant would be able to establish that his roughened elbows and knees were a result of a medical skin condition rather than scarring from combat. I am unpersuaded that, had a proper engagement with s 473DD led the IAA have regard to the medical certificate, it might have reached a different conclusion.

Arrest warrant

60    The IAA found that the Appellant had fabricated his claims to have been extorted, and rejected that he had been threatened or had provided blank cheques as a result of such threats. The IAA found that if the Appellant does have difficulty with dishonoured cheques, it is as a result of his practice of post-dating cheques to suppliers without sufficient funds available to honour the cheques (at [26]).

61    The IAA accepted that there may be active court cases or debtors in Sri Lanka in relation to such cheques (at [33]). It noted that the Appellant had provided no other details, evidence or country information in support of his claim to face serious harm from the authorities or debtors, and had advanced no additional submissions with respect to that claim. The IAA noted that the country information before it indicated that “Sri Lanka has a functioning, albeit imperfect judiciary” and no claim was advanced that any applicable laws are discriminatory in their terms or would be applied to the Appellant in a discriminatory manner. The IAA concluded that the Appellant “may need to face the consequences of his actions on return to Sri Lanka”, but there was nothing to indicate he faced a real chance of harm on this basis.

62    The warrant was issued for a failure to attend court on a date following the Appellant’s arrival in Australia. However, given that the IAA accepted that there may be open legal proceedings against the Appellant in relation to dishonoured cheques, the warrant alone would not appear to have been capable of affecting the outcome of the IAA’s decision. The existence of the warrant is not capable of establishing the Appellant’s account of having been extorted and threatened to produce blank cheques that were later filled in in amounts he was unable to honour. It is only capable of establishing the existence of legal proceedings. I am unpersuaded that, had the IAA meaningfully engaged with s 473DD of the Act and determined that it would consider the arrest warrant, it might have come to a different conclusion regarding the Appellant’s claims in this regard.

Further evidence

63    Pursuant to the Court’s orders of 7 May 2019, the Appellant had leave to file post-hearing submissions but not additional evidence. Given the Minister’s opposition to the receipt of new evidence, I do not propose to consider it. However for completeness, I also accept the submission advanced by the Minister that the evidence would not assist the Appellant for the reasons identified in the Minister’s primary written submissions.

New claim

64    By his post-hearing submissions, the Appellant apparently seeks to rely on a new ground of appeal not previously raised and not particularised. That ground is that the IAA failed to consider the correct social group to which the Appellant belonged, being an associate of the LTTE with pending arrest warrants in connection with a false case initiated by the Sri Lankan authorities.

65    No submissions are advanced by the Appellant in support of this new claim.

66    It is inappropriate to permit the Appellant to raise a new, unparticularised ground of appeal at this stage. The hearing of this appeal has already taken place. The Appellant was granted leave to file and serve post-hearing submissions given that he was self-represented and sought an adjournment. Leave was not given to amend the grounds of appeal, and no formal application has been made to amend.

67    Moreover, I am satisfied that the IAA accepted that the Appellant was forced to provide money and support to the LTTE, but did not accept that, as a consequence, the Appellant would have a profile that would place him at risk. As the Minister submits, even if the IAA framed its discussion by reference to the particular social group the Appellant now asserts was overlooked, it would not have affected the outcome as the IAA rejected the claim that the Appellant faced risk as an associate of the LTTE.

Disposition and orders

68    The primary judge ought to have found that the IAA did not demonstrate an active intellectual engagement with the provisions of s 473DD of the Act, and accordingly fell into legal error. However, that error was not material to the outcome of the IAA’s review. The error accordingly did not vitiate the IAA’s decision.

69    In consequence, the appeal is dismissed with costs.    

70    The orders I will make are as follows:

(1)    Pursuant to r 1.39 of the Federal Court Rules 2011 (Cth), the time prescribed in r 36.24 be extended to 18 April 2019.

(2)    Leave be refused to raise new grounds on appeal.

(3)    The appeal be dismissed.

(4)    The Appellant pay the First Respondent’s costs as agreed or assessed.

Associate:

Dated:    29 July 2019