FEDERAL COURT OF AUSTRALIA

CPX16 v Minister for Immigration and Border Protection [2019] FCA 1164

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from the judgment of the Federal Circuit Court of Australia delivered on 18 June 2019, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA). On 6 September 2016, the IAA had affirmed a decision of a delegate of the respondent Minister dated 22 July 2016 to refuse the appellant’s application for a Safe Haven Enterprise Visa (SHEV). The Federal Circuit Court’s decision has the citation: CPX16 v Minister for Immigration & Anor [2018] FCCA 2452.

2    This appeal was heard on 26 July 2019. Both parties were represented.

3    Having considered the parties’ submissions, the Court made orders on 26 July 2019, dismissing the appeal and with respect to costs. These are the reasons of the Court for those orders.

Background

4    The appellant is a citizen of Sri Lanka. He arrived in Australia in September 2012 as an “unauthorised maritime arrival”, as defined in s 5AA of the Migration Act 1958 (Cth).

5    On 30 December 2015, he applied for a SHEV. In a document accompanying his SHEV application, the appellant made a number of claims in support of his application. He also made further claims after lodging his application. In summary, the appellant claimed to fear harm from members of the Karuna/Tamil Makkal Viduthalai Puligal (TMVP) paramilitary group, because of his relationship with his cousin who he claimed was sought after by them; from Sri Lankan authorities and the Sinhalese, because he was from a Tamil village surrounded by Sinhalese who perceive Tamils to be Liberation Tigers of Tamil Eelam (LTTE) supporters; and from Sri Lankan authorities, because he fled Sri Lanka illegally and claimed asylum in a western country. He claimed, in particular, that:

    he has always lived in fear of the Sri Lankan authorities, because they believed that young Tamils like him supported the LTTE and other Tamil militant movements;

    it was not possible for him to move freely in his home area, as he always feared being harmed, especially because there was a large number of members of the Sri Lankan security forces in the area targeting Tamils, Tamils were frequently subjected to round ups in the area, and several Tamils had been shot by persons suspected of being linked to the Sri Lankan authorities;

    in June 2011, he was abducted by members of the Karuna/TMVP paramilitary group whilst he was travelling to work. He was detained at the Karuna office for two days, during which time he was interrogated, beaten and tortured. The appellant said that his interrogators believed that he was a former LTTE cadre who had managed to escape unnoticed and he was also asked about his cousin, although he did not divulge information about him;

    his cousin was forcibly recruited and trained by the Karuna/TMVP for six months, and he subsequently deserted his post and fled. From 2010 onwards, the appellant’s cousin worked in the same cement factory as the appellant and they travelled to work together; and

    in August 2012, there was an attempt to abduct the appellant’s cousin, following which he fled to the appellant’s house. On the same day, men came to the appellant’s home area wanting to know where the appellant resided. After this incident, the appellant’s parents made plans for him to leave Sri Lanka.

6    On 22 July 2016, a delegate of the Minister refused the appellant’s SHEV application. On 26 July 2016, the delegate’s decision was referred to the IAA for review.

IAA’s decision

7    On 6 September 2016, the IAA affirmed the delegate’s decision.

8    The IAA recorded that on 30 August 2016 it received a submission and further information from the appellant’s migration agent in relation to the review. The IAA noted that, to the extent the submission discussed evidence which was before the delegate and responded to the delegate’s decision based on that material, the IAA had had regard to it on the basis that it did not constitute new information (at [3]).

9    The IAA stated that it “was not satisfied of the matters in s 473DD(b)” of the Migration Act in relation to further reports and news articles that had been provided by the appellant, as it said they were new information which pre-dated the delegate’s decision, and the appellant had not provided any explanation as to why it was not provided to the delegate, or why it was credible personal information that might have affected consideration of his claims (at [4]). The IAA was also not satisfied that there were exceptional circumstances that justified considering new evidence provided regarding the Karuna group’s possible motivation for abducting the appellant’s cousin (at [5]).

10    The IAA accepted that the appellant was picked up by Sri Lankan authorities in 2007 during a round up, but was released unharmed, and that in 2011 he was detained for two days, questioned and beaten by the TMVP (at [17]). The IAA also accepted that the appellant’s cousin was in the TMVP (at [19]), but it did not accept “the majority of [the appellant’s] evidence where it concerns his cousin” (at [18]). In particular, the IAA did not accept that:

    the appellant’s cousin deserted the TMVP;

    the TMVP was interested in the appellant’s cousin;

    the appellant’s cousin escaped from the TMVP in 2009;

    the TMVP attempted to abduct the appellant’s cousin in 2012;

    the appellant was asked about his cousin whilst he was detained in 2011; or

    men came searching for the appellant in August 2012 in connection with his cousin’s attempted abduction.

11    The IAA was not satisfied that the appellant would face a real chance of persecution, now or in the foreseeable future, as a young Tamil male from the east (at [31]), particularly having regard to country information that “monitoring and harassment of Tamils has decreased under the Sirisena government” (at [29]), and “monitoring in the north and east has significantly decreased, there have been significant positive developments for Tamils in the country’s politics and the situation has generally improved” (at [30]). The IAA further found that, while the appellant may face some societal discrimination as a young Tamil male, this did not amount to significant harm (at [63]).

12    The IAA emphasised that, based on the country information, the appellant did not have a profile that was indicative of a risk of harm, including because he and his family had no actual links to the LTTE, and neither the Sri Lankan authorities nor the TMVP had made any enquiries about him since he had departed Sri Lanka (at [36]). The IAA did not consider that the authorities or the TMVP would have had any adverse interest in the appellant if he had remained in Sri Lanka or that he would be of any adverse interest if he returned (at [36]). The IAA was satisfied that the appellant would not face a real chance of persecution from the Sri Lankan authorities or the TMVP, now or in the reasonably foreseeable future, due to any imputed political opinion (at [37]).

13    The IAA accepted that the appellant would be considered a failed asylum seeker who had departed illegally (at [21], [38]). It was not satisfied, however, that there was a real chance that the appellant would face relevant harm on his return for these reasons (at [46], [54], [59]-[62]).

14    The IAA was ultimately not satisfied that the appellant faced a real chance of persecution now or in the reasonably foreseeable future, and therefore it concluded that the appellant did not satisfy the criterion in s 36(2)(a) of the Migration Act. The IAA also concluded that the appellant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act.

Federal Circuit Court proceeding

15    On 15 September 2016, the appellant sought judicial review of the IAA’s decision in the Federal Circuit Court. His application advanced two unparticularised grounds of review:

1.     The decision of the Immigration Assessment Authority was affected by an error of law;

2.     The Immigration Assessment Authority failed to afford the applicant procedural fairness.

16    The appellant appeared in person at the hearing before the primary judge on 18 June 2018 and made submissions in support of his grounds of review, including that the country information relied on by the IAA did not accurately reflect the situation of a young man like himself in Sri Lanka. The primary judge delivered judgment on the same day, dismissing the application.

17    The primary judge held that, by ground 1, the appellant was essentially seeking merits review. His Honour emphasised that the IAA’s choice and interpretation of country information is a matter for it, and that there was no suggestion that the IAA had made a wrong finding of fact (at [56]-[59]).

18    As to ground 2, the primary judge found that there was no evidence that procedural fairness was not afforded (at [64]). His Honour held that the appellant was given an opportunity to put his case to the IAA to the extent the statutory regime allowed (at [64]), and rejected any assertion that the conclusion reached by the Tribunal was unreasonable, illogical, irrational or arbitrary (at [65]-[69]).

Proceeding in this Court

19    By notice of appeal filed on 5 July 2018, the appellant initially sought to raise two grounds of appeal as follows:

1.     The FCC failed to find that the IAA failed to give any reasons why it was not so satisfied;

2.    The FCC failed to find that the IAA failed to explain what the phrase “credible personal information” means and why the IAA was not so satisfied, nor did the IAA explain why IAA was not satisfied that it may have affected consideration of the Applicant’s claims.

These grounds differed from those raised before the primary judge.

20    There was no solicitor on the record for the appellant when he commenced this appeal. The matter was initially set down for hearing in May 2019. On 1 February 2019, the Court ordered that the appellant file written submissions by 21 March 2019 and that the Minister file written submissions by 28 March 2019. The appellant did not file written submissions within the timeframe ordered. The Minister filed written submissions on 28 March 2019, as required.

21    The hearing was re-listed to June 2019 and then subsequently to 26 July 2019.

22    On 15 July 2019, a solicitor filed a notice of acting on behalf of the appellant. On the same day, the appellant, by his solicitor, filed (without leave) an amended notice of appeal and written submissions in support of his appeal.

23    The appellant’s amended notice of appeal seeks to substitute the following grounds for the original grounds of appeal:

1.     New Ground 5

The IAA erred when it

•    failed to properly consider the application of S 473DD of the Act to new information;

•    made a finding in respect of S 473DD(a) that it was not satisfied there are exceptional circumstances that justify considering information concerning a possible motive held by the TMVP, without considering S 473DD(b)(ii); and/ or

•    coming to a conclusion “I am not satisfied there are exceptional circumstances that justify considering the information concerning a possible motive held by the TMVP.” and not furthering considering that new information, which findings were unreasonable, with each such error (above) thereby infecting its decision to “not be satisfied the applicant faces a real risk of harm” did not consider S 473DD (b)(ii) and/ or (paragraph 5). [CB142]

…

2.     New Ground 6

The IAA failed to invite the applicant for an interview pursuant to S 473DC (3) of the Act. The IAA accordingly made a jurisdictional error thereby infecting its decision to not be satisfied the applicant faces a real risk of harm.

24    The appellant’s amended notice of appeal indicates that he seeks leave to rely upon “new Grounds 5 & 6 (above) which were not argued in the lower court”.

25    It is well-established that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], “[t]he 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”. In such a case as this, the Court’s assessment of the appellant’s prospects of success on the proposed new grounds will be critical to its determination of the grant of leave to raise them.

26    The Minister opposed the grant of leave on the basis that neither ground has sufficient prospects of success.

27    For the reasons I am about to state, I am of the view that the proposed grounds of appeal have insufficient merit to warrant the grant of leave to raise them on the appeal.

Proposed ground 5

28    By proposed ground 5 the appellant alleges that the IAA erred in applying s 473DD of the Migration Act because it made a finding that it was not satisfied that there were “exceptional circumstances” to justify considering the new information concerning a possible motive held by the TMVP (for the purpose of s 473DD(a)), without considering s 473DD(b)(ii) (ie, whether it was credible personal information which was not previously known and, had it been known, may have affected the consideration of the appellant’s claims).

29    In written and oral submissions the appellant referred to Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 at [29], [31] (Gageler, Keane and Nettle JJ) and BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [9] (White J) in support of this ground. Relying on those authorities, counsel for the appellant submitted that, although the the two limbs of s 473DD are cumulative, they overlap so that one would expect the IAA to address the matters referred to in s 473DD(b) in considering whether exceptional circumstances exist for the purpose of s 473DD(a).

30    Counsel for the appellant submitted that, there was nothing in the IAA’s reasons to suggest that it had turned its mind to the matters referred to in s 473DD(b)(ii), namely, whether the information concerning a possible motive held by the TMVP was credible personal information which was not previously known and, had it been known, may have affected the consideration of the appellant’s claims. Counsel submitted that the IAA’s failure to address s 473DD(b)(ii) constituted jurisdictional error.

31    In written and oral submission, the appellant contended that the material contained in his submission to the IAA was “credible personal information”, including because: it explained why a person with his profile would be of interest to the Sri Lankan authorities; it highlights the relationship between the appellant and his cousin and the cousin’s involvement with the TMVP/Karuna group; and it pointed out that a cache of weapons were found nearby the appellant’s home in an LTTE area. The appellant further submitted that the new information may have affected the consideration of the appellant’s claims because: the appellant and his cousin were related; the cousin was involved with the TMVP/Karuna group; and the submissions and other material before the IAA raised the possibility that the appellant held a well-founded fear of persecution which ought to have been considered.

32    In oral submissions, relying on AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [13]-[17] and DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22], counsel for the Minister submitted that in assessing “exceptional circumstances”, the IAA is not obliged, in every case, to consider the matters referred to in s 473DD(b)(ii). In any event, counsel for the Minister submitted that the IAA had, in substance, addressed both limbs of s 473DD(b) at [5] of its reasons, as it:

(1)    had regard to the appellant’s failure to explain why it was not possible to provide the information to the delegate, a matter directly referrable to s 473DD(b)(i); and

(2)    took the view that the new information was “simply speculation on the part of the [appellant]”, which was clearly relevant to whether it was credible information (as aspect of the statutory inquiry required by s 473DD(b)(ii).

Consideration

33    Section 473DD of the Migration Act provides that for the purposes of making a decision in relation to a fast track reviewable decision, the IAA “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.

34    The authorities make clear that whether there are exceptional circumstances must depend on the particular circumstances of the case, and in assessing “exceptional circumstances”, the IAA is not obliged, in every case, to consider the matters referred to in s 473DD(b)(ii). As the Full Court recently emphasised in AQU17 at [13]-[14]:

As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that 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 (s 473DD(b)(ii)).

…

As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.

(Emphasis added)

See also DLB17 at [22].

35    Relevantly, in the present case, in relation to the new information concerning a possible motive held by the TMVP, the IAA stated:

[5]    The applicant also provided information that was not before the delegate as to the Karuna Group’s (TMVP) possible motivation for abducting, and remaining interested in, the applicant’s cousin. These issues were raised with the applicant by the delegate at the SHEV interview and there is nothing in the explanation provided by the applicant that suggests it was not possible to provide it prior to the delegate making a decision. Additionally, the information on its face is simply speculation on the part of the applicant. I am not satisfied there are exceptional circumstances that justify considering the information concerning a possible motive held by the TMVP.

36    It is clear from that passage that, in finding that there was no exceptional circumstances to justify considering that new information, the IAA specifically had regard to (a) the lack of any explanation by the appellant as to why it was not possible to provide the information before the delegate’s decision; and (b) the speculative nature of the information. It is also relevant that the appellant offered no explanation as to what the exceptional circumstances were that justified consideration of the new information, or which specifically addressed the matters referred to in s 473DD(b)(ii): see AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33] (Mortimer J). In the circumstances, contrary to the appellant’s submissions, the IAA was not required to give specific consideration to s 473DD(b)(ii) in assessing whether there were exceptional circumstances.

37    In any event, I accept, as counsel for the Minister submitted, that the IAA’s statement that the new information was “simply speculation on the part of the [appellant]” was directly relevant to whether it was credible. As such, notwithstanding that the IAA did not make an express finding in relation to s 473DD(b)(ii), it seems to me that the IAA did, in substance, address whether the new information was “credible” personal information in assessing whether exceptional circumstances existed: see similarly AQU17 at [16]-[17].

38    There is no merit in proposed ground 5.

Proposed ground 6

39    Proposed ground 6 contends that the IAA erred by failing to invite the appellant for an interview pursuant to s 473DC(3) of the Migration Act.

40    In his written submission the appellant submitted that “the new material was so significant that [the IAA] ought to have invited the [appellant] for an interview pursuant to S 473DC(3) of the Act”, and the IAA failed to act reasonably in not seeking further information in that respect. At the hearing, counsel for the appellant submitted that the IAA should have at least considered seeking further information from the appellant in relation to the significant claims made in the new information and, in that circumstance, the IAA’s failure to even avert to its discretion to invite the appellant to provide further information meant that the discretion had miscarried.

41    In written submissions, the Minister submitted that, having regard to the statutory regime that governs IAA reviews, there was nothing unreasonable in the IAA not inviting the appellant to appear before it. Counsel for the Minister also contended that ground 6 was, in substance, a complaint that the IAA should have sought further information from the appellant about the very matters that he raised in the written submission made to the IAA (that is, why the Karuna group was interested in his cousin and, by association, him). Counsel emphasised that the appellant had had two opportunities to provide that information, first to the delegate and then to the IAA, and that he had taken the opportunity to do so when he provided the new information to the IAA. In those circumstances, counsel submitted that it was difficult to see how it could have been unreasonable for the IAA not to invite the appellant to give the information again at an interview.

Consideration

42    There are some instances when it may be unreasonable for the IAA to conduct a review without seeking further information under s 473DC: see Plaintiff M174 at [49] (Gageler, Keane and Nettle JJ), [86] (Gordon), 97 (Edelman); Minister for Immigration v CRY16 [2017] FCAFC 210; 253 FCR 475 at [69], [77]-[82]. The present is not such a case.

43    IAA reviews under Part 7AA of the Migration Act are undertaken by considering the review materials on the papers, without accepting or requesting new information and without interviewing the referred applicant: see s 473DB(1); see also Plaintiff M174 at [22] (Gageler, Keane and Nettle JJ).

44    Relevantly, the appellant was provided with a letter dated 27 July 2016 informing the appellant that the delegate’s decision had been referred to the IAA for review, which attached an information sheet and Practice Direction containing information about the IAA review process. The Practice Direction made clear to the appellant (and his representative) that if he wanted to give the IAA new information, he had to provide an explanation as to why the information could not have been given to the Department before the decision was made, or why the information is credible personal information which was not previously known and may have affected consideration of his claims, had it been known. The IAA’s reasons indicate that the appellant failed to provide such explanation (at [4]-[5]). In my view, it was not unreasonable for the IAA not to invite the appellant to address the matters raised in his submissions.

45    The appellant has not identified, and I am unable to discern, anything that can properly be described as legally unreasonable or irrational in the IAA not inviting the appellant for an interview. There is no merit in proposed ground 6.

46    For these reasons, I would not grant the appellant leave to amend his notice of appeal to add the proposed new grounds.

Original grounds of appeal

47    As indicated above, the grounds advanced in the appellant’s original notice of appeal were that the Federal Circuit Court failed to find that: (1) the IAA failed to give any reasons why it was not so satisfied; and (2) the IAA failed to explain what the phrase “credible personal information” means, why it was not so satisfied, nor why the IAA was not satisfied that it may have affected consideration of the appellant’s claims. As indicated, neither of these grounds were raised before the primary judge and in the ordinary course the appellant would therefore also require leave to raise these grounds on appeal.

48    The substance of the complaints in the appellant’s original grounds of appeal are unclear. So too are the particulars accompanying those grounds. At the hearing, counsel for the appellant acknowledged that the reference at [1] of the particulars to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 was not specifically to the point, and he abandoned the assertion at [4] of the particulars that the IAA had failed to observe procedural fairness.

49    It may be that the appellant’s amended notice of appeal sought to articulate his original grounds of appeal more clearly, in which case they would fail for the reasons already stated.

50    In any event, I accept, as the Minister submitted in written submissions, that no failure to give reasons was shown: there is simply no basis to support that proposition. I also accept that there was no obligation on the IAA to explain what it understood by the expression “credible personal information” in the circumstances of the appellant’s case. The IAA addressed the statutory questions that arose from s 473DD of the Migration Act in its reasons at [2]-[5] and, having considered these questions and the material before it, found that there were no exceptional circumstances to justify considering the new information that the appellant sought to place before it, thus concluding the inquiry: see s 473DD. To the extent that ground 2 alleged that the IAA erred by not inviting the appellant to attend an interview, it lacks merit for the reasons outlined above in relation to proposed ground 6.

51    For these reasons, the appellant’s original grounds fail, either because they have insufficient merit to warrant the grant of leave to raise them on appeal, not having been advanced before the primary judge, or on the assumption leave were granted, they fail to disclose error of any kind.

Disposition

52    For the reasons stated, I dismissed the appeal with costs.

Associate:

Dated:    29 July 2019