FEDERAL COURT OF AUSTRALIA

DAT17 v Minister for Immigration and Border Protection [2019] FCA 1548

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant be refused leave to rely on a ground of appeal not agitated before the Federal Circuit Court of Australia.

2.    The appeal be dismissed.     

3.    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    The Appellant is a Sri Lankan citizen. He arrived in Australia in September 2012 as an “unauthorised maritime arrival” as defined by s 5AA of the Migration Act 1958 (Cth) (Act). Following a decision of the Minister for Immigration and Border Protection (Minister) to exercise his power pursuant to s 46A(2) of the Act, the Appellant applied for a Safe Haven Enterprise (subclass 790) visa (SHEV) on 8 February 2016. On 4 November 2016 a delegate of the Minister refused the Appellant’s SHEV application. The Appellant’s application was automatically referred to the Immigration Assessment Authority (Authority) for review pursuant to Pt 7AA of the Act. On 15 June 2017, the Authority affirmed the decision of the Minister’s delegate. The Appellant applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the Authority’s decision. On 19 December 2018, the FCCA dismissed that application. This is an appeal from that decision.

The Appellant’s claims

2    In his SHEV application, the Appellant stated that he feared harm on the basis of his Tamil ethnicity. Despite the war having ended, he stated that Tamils were still treated as “second-class citizens” in Sri Lanka, and were denied basic rights.

3    The Appellant’s protection claims are set out in detail at [19]-[27] of the Authority’s reasons:

19.    The applicant’s claims are contained in the information referred and subsequently given to the IAA. There a number of inconsistences in the various accounts and the basis of his claims appears to have changed somewhat over time.

20.     In the entry interview conducted on 15 January 2013, the applicant was instructed to provide brief answers to the questions asked and the interviewer interrupted him and cut off his answers several times. As to why he left Sri Lanka, he said that his life was threatened because of his uncle’s problems, and explained that his uncle had been abducted by unidentified people who had subsequently looked for the applicant. He said that he did not know why his uncle had been abducted and thought the people were looking for him because of his connection with his uncle. He said that he had never had problems with the police, had never been arrested and neither he nor any family members had been associated with any political group or organisation, nor had they participated in fighting or been trained to fight. He stated that he had worked as a jeweller from 2001 until 2009, and from 2009 until 2012 as a computer repairer. He provided one address from his birth until his departure, but added that he had stayed at his auntie’s house for a time and confirmed that he had never lived anywhere else.

21.     In a statutory declaration made on 13 August 2013, which was prepared with the assistance of a legal representative appointed under the IAAAS and with the assistance of an interpreter, the applicant stated that from 2001, while he was still at school, he worked in his uncles’ jewellery business. He stated that his uncles had problems with a business rival, [V], who had previously been an LTTE member and later joined the Karuna Group and TMVP. He stated that in March 2009 his family home was raided by 10-15 armed police and STF officers. His uncle [N] was dragged outside, beaten, and taken away. The next day, the applicant, his uncle [S] and his grandmother went to the local police station to report the abduction. While his grandmother made the complaint, the applicant and his uncle were questioned separately. The applicant stated that he was “aggressively interrogated in Sinhalese”. He said that he told the police that he recognised two of the police officers involved in the abduction. He was slapped on the face and the officers shouted at him, but he said that he could not understand them because they spoke in Sinhalese. When he and his uncle were released, on the same day, the uncle and the applicant’s aunt reported the abduction at the Human Rights Commission office. Four days later the applicant’s uncle [S] was told to go to the police station, where he was severely beaten and interrogated. Four weeks later “two unidentified men” asked about the applicant at his home. He claimed that after that, he rarely ventured outdoors other than for work and sometimes, when his mother advised it was dangerous, he would stay with his boss or his aunt. In 2010 two men came to the home again looking for the applicant. In August 2012 the applicant’s mother decided he should flee for his safety. In June 2013 the CID went to his uncle [S]’s home and inquired about [N]. They asked who had worked with him and the applicant’s name was given. He fears that the CID are now looking for him. His uncle [N] has never been seen again.

22.     The applicant stated that the situation for Tamils has not improved since the end of the civil war, they are harassed by the authorities and denied basic rights. He fears that he will be arrested, tortured and killed if he returns as a failed asylum seeker. He stated that he would not be able to support his family and work due to the systematic harassment he endured from the Sri Lankan police.

23.     In his 866 application form the applicant indicated that he had resided … in the Central Province of Sri Lanka, from December 2004 until March 2005, when he was displaced by the tsunami, and stated that he had otherwise lived at the one address near Batticaloa.

24.     The applicant provided essentially the same claims in the statement submitted with his SHEV application. Some details were added – for example, he stated that the police officers who interrogated him when he complained about his uncle’s abduction spoke some broken Tamil as well as Sinhalese. He stated that when his uncle [S] reported to the police station four days later, they asked him whether the applicant was an LTTE cadre. They also said that the applicant should not mention about the police officers from that station who had abducted his uncle. They said that [N] had given money to the LTTE and that he was a supporter of Tamil Eelam. The applicant stated that after a visit to his home in 2010 by two paramilitaries, he went to stay with [R], his employer. He claimed that people would never suspect he was staying with a Muslim, and at the SHEV interview he said that the police did not go to that Muslim area. The applicant said that he was so frightened during the period he stayed with [R] that he decided to leave Sri Lanka. [R] and a friend of his helped with the departure arrangements. As noted above, the applicant made some corrections to the statement in his statutory declaration given to the IAA.

25.     The applicant claims that in January 2013 two unidentified men arrived at his home in a white van to pick him up. They searched the house and found that he was not there. The applicant has submitted a copy of a confirmation issued at his mother’s request by the ICRC stating that she reported this visit to the ICRC the following day.

26.     The applicant stated that in August 2015 his uncle [S] was stopped by CID officers on the way to Trincomalee. He was detained at the army camp and later in Batticaloa prison. He has submitted a document purporting to be a detention order under the PTA issued on 20 July 2015 in relation to [name redacted]. [R] has also been detained and tortured, he has been accused of involvement in people smuggling. Police officers went to the applicant’s home looking for him in January 2016 and when his mother said that he was in Saudi Arabia they assaulted her and said that they knew he was in Australia. They told her that a Tamil boy who had been sent back had been arrested and detained and would be killed soon.

27.     The applicant thus essentially fears harm because of his connection with his missing uncle [N]. Initially he said that he did not know why his uncle was abducted or why there was any subsequent interest in him, apart from his connection to his uncle. His later claims were put on the basis that he was in danger because he had told the police that he recognised two of the people, police officers, who were involved in the abduction. He appears to suggest that his uncle [S] continued to be harassed and was detained in 2015 because of his ongoing pursuit of an investigation into [N] abduction. However, at the SHEV interview he seemed to be suggesting that the family was accused of involvement with the LTTE – either by [V] or by the police attempting to create a “new story” to cover up or distract from their involvement in the disappearance of [N]. The applicant thus claims that he fears harm because of his connection with his uncles, and because he will be imputed to be a supporter of the LTTE both because of this family connection and because he is a young Tamil male from an area formerly under LTTE control. He claims that Tamils generally face human rights abuses including torture at the hands of the police and other authorities. He claims to fear harm as a failed asylum seeker who departed illegally from Sri Lanka. He claims that he will not be able to subsist because he cannot work because of harassment by the police.

The Authority’s findings

4    At [31] of its reasons, the Authority accepted that the Appellant’s uncle N had been abducted in 2009 and had not been seen since. In so finding, the Authority noted that country information indicated abductions occurred frequently in the Batticaloa area from about 2006, and that the Karuna Group or the TMVP were often involved, sometimes in conjunction with police or other security authorities. The Authority expressed its reasoning as follows:

31    I accept that the applicant’s uncle N was abducted on 18 March 2009 and that he has not been seen since. Country information indicates that abductions such as this occurred frequently in the Batticoloa area from about 2006. Often Kauna Group or TMVP were involved, sometimes in conjunction with the police or other security authorities. On the basis of the information before me, however, I cannot be satisfied as to the reason for the abduction. I note that at the entry interview the applicant said that he did not know why his uncle had been abducted. In the first protection visa application he stated that it was because [V], a business rival, bribed corrupt police and security officials to abduct [N]. His later claims and evidence suggest that [V] may have made false allegations about the uncle, or that the police decide to raise allegations that the family was involved with the LTTE to cover up their involvement. The applicant denies that his uncle had any involvement with the LTTE. Based on the credible evidence before me, I cannot be satisfied as to the reason for the abduction of the applicant’s uncle.

32    I accept that the applicant's family members, mainly his other uncle [S] and [N]’s mother, made inquiries and lodged reports about the abduction with various agencies. I accept that the incident on the day after the abduction, when the applicant, his uncle and grandmother went to the local police station and reported the abduction, occurred as described by the applicant. The applicant’s description is consistent with country information which states that relatives of victims of abduction would often be told to attend at a police station or army camp the next day, only to be told that the whereabouts of their relative was unknown. There are also reports of relatives of missing persons being threatened if they pursued inquiries into the disappearance. I accept that the applicant was slapped and that he and his uncle [S] were threatened on that day, 19 March 2009. I am also prepared to accept that four days later [S] was again required to go to the police station where he was beaten and threatened. I do not accept that inquiries were made about the applicant, however. The applicant did not mention any interest in him in the statutory declaration lodged with his first protection visa application, and the addition of this information in the SHEV application appears to me to be an embellishment. I consider that if the authorities had any genuine interest in the applicant, if they were concerned that he might reveal the involvement of police in the abduction, and in particular if they had really suspected that he was an LTIE cadre, as he claimed in his SHEV application, he would have been detained or subjected to further investigation himself.

5    The Authority then concluded as follows:

33.    I do not consider that the applicant has provided a credible account of ongoing interest in him on the part of the authorities after the incident on 19 March 2009, although I am prepared to accept that they may have subsequently gone to his house once or possibly twice. In the August 2013 statutory declaration the applicant stated that four weeks after the second detention of [S], unidentified men attended his family home and asked about him. He stated that after that he rarely went out other than for work, and sometimes stayed with his boss or his aunt. Another inquiry was made about him at his home in 2010; at that time he was hiding in the house but the policemen accepted his mother's word that he was not there. In the SHEV statement the applicant did not mention the first visit; he only mentioned the visit in 2010, and claimed that after that he went to stay with [R], his employer. In the SHEV interview, he seems to have only mentioned the second, 2010 incident: he described one occasion when he was at home and people asked for him, and his mother said that he had gone to the market. These details appear to be consistent with those of the 2010 incident described in his statement. At the SHEV interview he said that people had been to his house looking for him "many times", but he had only mentioned the 2010 occasion in his written statement. I do not accept this. If the police or unidentified men had been to his home many times, I believe the applicant would have said so in his written statements, rather than mentioning details of only one or two specific occasions. It is possible that, given the circumstances of his uncle's abduction, which I accept, security agencies may have visited the applicant's home and I am prepared to accept that they may have done so most recently in 2010. However, the applicant says that he was at home on both occasions. Had the authorities really been intent on finding him and harming him, I do not accept that they would have just left, rather than either searching the house or waiting for his return. Accepting that the visits occurred, it is not clear why they did, although it is possible that they were somehow related to the disappearance of his uncle. However, I do not consider that they reflect any ongoing interest in the applicant as a suspected LTTE cadre, or because of concerns that he might pursue an investigation or reveal the identities of the police involved, or that they indicate an intention to actually harm him I do not consider that these one or two visits to the applicant’s home represent a serious level of adverse interest in the applicant, or indicate that he faces a real chance of serious harm on return.

6    At [34]-[39], the Authority noted other inconsistencies in the claims advanced by the Appellant. It did not accept that the Appellant had been in hiding for two years prior to his departure from Sri Lanka, or that the authorities would have an ongoing interest in him. The Authority did not accept the claim that the Appellant’s uncle S had been detained in August 2014, and was not satisfied that he faced a risk of harm on that basis.

7    Having regard, inter alia, to those observations the Authority decided to affirm the decision of the Delegate.

Proceedings before the FCCA

8    Nine grounds of review were originally advanced before the primary judge. The Appellant was represented by counsel in those proceedings. Only two of the nine grounds were ultimately pressed; the others were abandoned.

9    The first ground pressed in the court below contended that the Authority had failed to deal with a claim that Tamils are treated as second-class citizens and denied their basic rights. The claim was said to have arisen from a statutory declaration provided by the Appellant. The primary judge rejected that ground. For reasons later explained it is not necessary to set out the primary judge’s reasoning in that regard.

10    The second ground pressed in the court below contended that the Authority’s reasoning at [31] and [33] was ambiguous. Counsel for DAT17 submitted that the Authority ought to have not concluded its reasoning at that point. In view of the Authority’s expressed uncertainty (as set out at [4] above) as to the reason for N’s abduction, counsel submitted the Authority ought to have gone on to consider the possibility that its conclusion was wrong. Counsel relied on the principle articulated by Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam (1993) 93 FCR 220 (Rajalingam).

11    The primary judge reasoned as follows:

30    I do not need to determine the broader question raised by the Minister as to whether the principle in Rajalingam applies to non-findings. The real issue is whether the Authority properly addressed the question whether the applicant had a “well-founded fear of persecution”. If it failed to engage in reasonable speculation about what might occur in the future then it did not properly address that question. In my view, it did and the fact that it was unable to be satisfied about the cause of past events does not mean that it was required, as a matter of law, to determine the review on the basis that the reason for those occurrences supported the applicant’s claims. As Mortimer J explained in CPE15 v Minister for Immigration & Border Protection [2017] FCA 591 at [60], the relevant assessment is “one which can be made on the basis of probative material, without extending into guesswork.” The Authority’s reasoning here was that there was simply not enough credible evidence to come to any view about the reasons for the abduction or the visit. That was not an expression of some doubt about that conclusion, or an assessment on the balance of probabilities.

31    There is no obligation imposed by the Act on the Authority to make findings explicitly accepting or rejecting an applicant’s claims. Section 65 of the Act requires that the decision-maker be affirmatively satisfied that the applicant meets the statutory criteria, relevantly whether the applicant has a well-founded fear of persecution. Findings of fact are not always necessary to support a state of non-satisfaction. Where the evidence before the decision-maker is insufficient or inadequate to establish relevant facts there is no error in failing to make a finding: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]-[17] and the cases referred to there.

32    I am not satisfied that the Authority failed to properly assess the possibility of future persecution in light of the abduction of the applicant’s uncle and the later visits by the authorities. Ground 2 must be dismissed.

12    The primary judge dismissed the Appellant’s application for judicial review on 19 December 2018.

The Notice of Appeal

13    On 8 January 2019 DAT17 filed a notice of appeal in this Court, setting out four grounds of appeal. They were as follows:

Grounds of appeal

1.     The Immigration Assessment Authority (“the IAA”), while it dealt with the applicant’s principal claim that he feared harm from the Sri Lankan authorities arising from events associated with his uncles and/or because of an imputed political opinion of support for the LTTE, did not deal with the Second-Class Citizen Claim in its decision dated 15 June 2017. This was a jurisdictional error.

Particulars

a)     The basis of this claim is that the IAA failed to deal with what was called the “Second Class Citizen Claims”. This claim was expressly arising from the applicant’s Statutory Declaration dated 12 August 2013 at [20] and [25].

b)     The applicant said “Despite the fact that the war officially ended in 2009, the situation for Tamils has barely improved. We are still treated as second-class citizens and denied of many of our basic rights. We are harassed by the authorities and the Sinhalese population and are afraid to complain or exercise our rights for fear of punishment” at [20].

c)     The applicant said “I fear I will be harmed and mistreated in Sri Lanka for reasons of my race – I am a Tamil.”

d)     One of the applicant’s claims was that “Tamils are still treated as second-class citizens and denied many of our basic rights [and] harassed” (CB 281 [20]) and, if the applicant is required to return to Sri Lanka, he will “be harmed and mistreated” on this basis (CB 281 [25]) (“the Second Class Citizen Claim”).

e)     The Federal Circuit Court Judge Smith failed to hold that this was a jurisdictional error.

2.     the IAA was obliged to take into account the possibility that the applicant’s claims concerning these past events were true: see Minister v Rajalingam (1999) 93 FCR 220. If the IAA had taken this possibility into account, it may have affected the IAA’s assessment of whether the applicant faces a real chance of persecution on his return to Sri Lanka. For this reason, the IAA fell into jurisdictional error.

Particulars

a)     The applicant claimed that a business rival of the applicant's uncles called [V] was behind the abduction of an uncle in March 2009. The IAA at [31] accepted that the uncle was abducted in March 2009 but was uncertain why the uncle was abducted. The applicant claimed that following the abduction in March 2009 the authorities came to the applicant’s house a number of times because the authorities had an ongoing interest in him.

b)    The IAA at [33] accepted that the authorities may have gone to the applicant’s house once or twice but was uncertain why the authorities visited. In both cases the IAA’s language (in its decision at [31] and [33]) indicated that the IAA had doubts about its findings.

c)     The Federal Circuit Court Judge Smith failed to hold that this was a jurisdictional error.

3.     The IAA should have exercised its power under s 473DC of the Migration Act 1958 to put the inconsistencies to the applicant for comment. To not do so was legally unreasonable.

Particulars

a)     One reason the IAA rejected the applicant’s claims in its decision dated 15 June 2017 was because of inconsistencies between a statutory declaration of the applicant dated 13 August 2013 submitted with a protection visa application at the time, and later evidence given by the applicant in the statement accompanying his SHEV application dated 5 February 2016 and at the SHEV interview.

b)     The IAA took nearly six months to make a decision on credibility-based findings and it was imperative for the IAA to put the inconsistencies to the applicant for comment by exercising its powers power under s 473DC of the Migration Act 1958.

c)     In the circumstances, the IAA should have exercised its power under s 473DC of the Migration Act 1958 to put the inconsistencies to the applicant for comment. To not do so was legally unreasonable.

d)     [In] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 the High Court while confirming the Immigration Assessment Authority’s powers under ‘fast track’ review process; broadens legal unreasonableness by emphasising that the Authority must exercise its review powers within the bounds of legal reasonableness, expanding this as a ground of appeal in the process.

e)    Federal Circuit Court Judge Smith would have held that that [sic] it was legally unreasonable of the IAA.

4.     The applicant submitted his Statutory Declaration dated 3 November 2016 and Written Submissions dated 11 December 2016 and Testimonials to the IAA prior to the making of the decision by the reviewer [name redacted] who said the requirements of s.473DD are not met.

Particulars

a)     The applicant’s Statutory Declaration dated 3 November 2016 marked as ‘Annexure B’ and written Submissions dated 11 December 2016 marked as ‘Annexure C’ to his Affidavit dated 7 July 2017 filed in the Federal Circuit Court.

b)     Since the applicant took up the opportunity to provide further material pursuant to s 473DD of the Migration Act 1958, the IAA would then have to decide whether it was able to consider 473DD of the Migration Act 1958.

c)     It is evident the [reviewer’s] state of mind so committed to a conclusion already formed as to be incapable of alteration, despite the evidence and arguments presented by me that there is a real chance of risk that I would be subjected to serious or significant harm on my return to Sri Lanka.

Background procedural issues

14    DAT17’s appeal was initially listed for hearing on 30 May 2019. However on 25 May 2019 DAT17 filed an interlocutory application supported by an affidavit. He requested that the hearing date be vacated. The basis of his application was that he had secured the services of a solicitor who had undertaken to brief counsel. However his solicitor had not completed that task before having to travel to Sri Lanka to attend funeral ceremonies following the death of his father. He deposed that his solicitor still intended to assist him. The Minister indicated that the Appellant’s adjournment application was opposed. The Court advised the Appellant that his application for an adjournment would be heard and determined on 30 May 2019 immediately prior to the listed hearing. He was advised that if his application was refused the hearing would proceed.

15    On 30 May 2019 DAT17 appeared unrepresented. His affidavit in support of his application for an adjournment was read. It is unnecessary to canvass the responsive submissions which were then advanced on behalf of the Minister, save to note that: (a) Mr Kay Hoyle advanced those submissions entirely consistently with the duties of counsel appearing for a model litigant; and (b) that his instructions ultimately evolved. The Court, having regard to Mr Kay Hoyle’s revised instructions made the following orders by consent:

 1.     The hearing of the appeal be adjourned to 25 July 2019.

2.     A notice of acting prepared in accordance with r 4.03 of the Federal Court Rules 2011 (Cth) be filed and served on behalf of the Appellant no later than 4.00 pm on 18 June 2019.

3.    In the event that no notice of acting is filed pursuant to Order 2, the appeal be listed for hearing on 25 July 2019.

4.     In the event that a notice of acting is filed pursuant to Order 2, the parties provide to the Court by no later than 4.00 pm on 25 June 2019 a timetable for the hearing of the appeal on 25 July 2019 that provides for:

(a)     any proposed amended notice of appeal; and

(b)     further submissions from the parties if necessary.

5.     In the event that the parties are unable to agree with respect to the matters in Order 4, a Judge or a Registrar of the Court will make directions for the hearing of the appeal to be heard on 25 July 2019.

6.     The Appellant pay the costs of the First Respondent thrown away by reason of the adjournment of the hearing of the appeal on 30 May 2019.

 7.     Liberty to apply.

16    A “Notice of acting – appointment of lawyer” was filed on 17 June 2017. The Court made further procedural orders on 26 June 2019 providing for the Appellant to file and serve any proposed Amended Notice of Appeal by 4 July 2019 and for the filing of further submissions by both parties.

The (proposed) Amended Notice of Appeal

17    On 3 July 2013 DAT17, now legally represented, filed and served an Amended Notice of Appeal.

18    DAT17’s Amended Notice of Appeal expressly abandons Grounds 1 and 4 as originally advanced. Grounds 2 and 3 remained as originally expressed. Additionally a proposed new Ground 5 is sought to be relied upon as follows:

(New) Ground 5:

The IAA erred when it did not invite the Applicant for an interview in respect of the following new claims pursuant to s 473DC of the Migration Act:

i.     The new claim to the effect that the applicant’s and his family’s ‘ability to subsist has been affected by the “arrest of his uncle under Detention Order made in terms of the Prevention of Terrorism (Temporary Provisions) Act No 48 of 1979 (PTA) and disappearance of another uncle (substantial contributors of financial supporters to the applicant’s family)’ contained in the Written Submissions [CB831]

ii.     The new claim to the effect that the applicant’s uncle [P] was shot and killed by the STF who alleged he was a former LTTE cadre. Such failure amounting to an unreasonable exercise of the discretion under s 473DC of the Migration Act and accordingly amounting to a legal error.

Such failure amounting to an unreasonable exercise of the discretion under s473DC of the Migration Act and accordingly amounting to legal error.

19    DAT17 sought leave to rely on “new Grounds 2, 3 and 5 which were not argued in the lower Court”. However, neither Ground 2 nor 3 are new, in the sense that they are as stated previously in the Appellant’s original Notice of Appeal. Further, neither are new in the sense that they had not been raised by the Appellant in the court below, although the circumstances with respect to each are strikingly different.

20    Mr Kay Hoyle accepts that Ground 2 was, in substance, advanced before the primary judge. Having regard to the position taken by the Minister that no objection was taken, the Court is satisfied the Appellant does not require leave to rely on that ground.

21    Ground 3 was also advanced before the primary judge. However, Mr Kay Hoyle drew attention to the fact that counsel then representing the Appellant had informed the primary judge it would not be pressed. On behalf of the Minister, Mr Kay Hoyle submitted that the Court should not permit the Appellant to rely on a ground that his counsel, in the court below, had made a deliberate forensic decision to abandon.

22    Counsel appearing for DAT17, Mr Foster, did not contest Mr Kay Hoyle’s description of what had occurred when the matter had been before the primary judge. He advised that DAT17 would not press Ground 3. The Court proceeds on that basis.

23    Only proposed Ground 5 is therefore strictly a new ground. It is uncontentious that for that ground to be relied upon, leave of the Court is required. The Minister opposed leave being granted. The Court addresses the contentions of the parties in respect to Ground 5 later in these reasons.

24    It is convenient first to address the single ground of appeal for which leave is not required.

Ground 2

The parties’ submissions

25    The Appellant submits that the IAA’s finding at [31] that it could not be satisfied about the reason for the abduction of the Appellant’s uncle gave rise to a further obligation. The Authority should have not concluded its reasoning at that point. Instead, it ought to have gone on to consider what the position would be if it were in error. That is, it ought to have made findings on each available premise as might have been the reason for the abduction of the Appellant’s uncle.

26    Mr Foster submits:

The IAA accordingly failed to consider what the position would be if it were wrong and that, in fact, the uncle had been abducted because of either explanations given by the applicant cited above, that is, because [V], a business rival, bribed corrupt police and security officials, or that [V] may have made false allegations about the uncle, or that the police decided to raise allegations that the family was involved with the L TIE to cover up their involvement. If it had, the IAA might have found that the applicant would face a real chance of harm due to the possibility that his uncle was abducted because [V] had joined the TMVP and/or had connections the police and STF officers who were involved in the abduction thereby, or that police had raised false allegations to cover up their involvement in the uncle's abduction. The possibility that the uncle was abducted because of the influence of [V] with the police, and that the applicant was the uncle's nephew who recognised two of the abductors, could mean he would still be in danger and have a well founded fear of persecution upon return.

27    To the same effect, the Appellant further submits the IAA erred in failing to make a positive finding as to the reasons for the “authorities” visiting the Appellant’s home following the 19 March 2009 incident and/or failing to ask itself “what if I am wrong”. Mr Foster submits:

e.     The applicant claimed [at] paragraph 21 [CB852] he had gone to local police after the abduction of his uncle where he told police he recognised two of the people who abducted his uncle as being police from the station: he was aggressively interrogated, and slapped on the face and shouted at. The applicant claimed his other uncle was severely beaten at the police station, and thereafter unidentified persons visited his home and he fears harm because of his connection with his missing uncle. The IAA accepted the authorities may have visited once or maybe twice and also opined the applicant feared harm because he will be imputed to be a supporter of the LTTE both because of the family connection and because he is a young Tamil male from an area formerly under the LTTE control.

f.     Thus the applicant clearly raised the possibility that the people who visited his home were connected to the disappearance of his uncle, a conclusion that seems credible for a number of reasons - the timing of their visit to the applicant’s home shortly after the abduction demonstrates there was a connection to the uncle, after it was known the applicant recognised abductors as police.

g.     The IAA did not accept the visits reflect any ongoing interest in the applicant. However, the IAA considered 'it is possible that [the visits] were somehow related to the disappearance of the uncle', but did not consider what was the possible or likely outcome if the reason for the visits were related to the disappearance of his uncle and his claimed admission to the police that he recognised two of the abductors or ask itself ‘what if I am wrong?’.

(Appeal Book references omitted.)

28    In support of this ground, the Appellant cites and relies on the reasoning of Sackville J in Rajalingam as set out below:

62    In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution

63    Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.

29    The Appellant submits that the primary judge was in error in dismissing the Appellant’s contentions so premised advanced before it. The Authority had failed to properly consider a critical aspect of the “ultimate enquiry” of whether the Appellant had a well-founded fear of persecution. The primary judge had erred in finding that the Authority had not failed “to engage in reasonable speculation about what might occur in [the Appellant’s] future” (at [30]).

The Minister’s submissions

30    With respect to Rajalingam, the Minister submits:

21.     It is important to note certain salient features of the decision in Rajalingham. The analysis undertaken by the Full Court was directed to whether certain events did or did not occur (rather than why those events occurred); a decision-maker may fall into error if he or she fails to consider whether an alleged event may have occurred: at [62] and [66]. There is nothing, as a matter of principle that requires a decision-maker to express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct: at [64]. A reviewing court should not “impute” to a decision-maker a lack of conviction or confidence in its findings of fact so as to warrant holding that the decision-maker should not or could not have elide on such findings to hold that a fear of persecution was not well-founded: at [65]). If there is “no real doubt” about a finding then there is no warrant for holding that a decision-maker “should have considered the possibility that its findings were wrong”: at [67].

31    The Minister submits that in contrast to the circumstance that had confronted Sackville J in Rajalingam, in the present case there was no question of the IAA being in any doubt as to whether the relevant event (N’s abduction) had in fact occurred.

32    The IAA had expressly accepted at [31] that N had been abducted on 18 March 2009. It had accepted that N had not been seen since. The IAA had been satisfied that abductions were common in that location at the time. It had accepted that such abductions had frequently involved the Karuna Group or TMVP with the assistance of the police or security agencies.

33    It was simply, Mr Kay Hoyle submitted, that the IAA had been, understandably on the evidence before it, unable to form any state of satisfaction as to the reason why N had been abducted. The IAA’s incapacity to form any concluded state of satisfaction in that regard was both justifiable and inevitable given that the Appellant himself had given conflicting accounts of his understanding of why N had been abducted. There was no other material before it (nor does the Appellant suggest that any might be available) which might have permitted a concluded view to be reached.

34    Similarly, the IAA had not expressed any doubt that the “authorities” (which I take to be an uncontentious reference to elements of Sri Lanka’s security forces or police) had visited the Appellant’s home once or twice (at [33]). However, it rejected that they had visited many times. The Authority accepted the fact that those visits had occurred. All the Authority had been unable to make a finding about was as to the reason for those visits. However, nothing turned on that because the Authority had been satisfied that they were not because of the authorities’ ongoing interest in the Appellant. In reaching that conclusion, the Authority had reasoned that if the Sri Lankan security forces had been significantly interested in the Appellant they would not have simply left the house without searching it or waiting for his return.

35    The Minister submits that, in each instance, there was no event which the Authority had concluded had not taken place, but could have, as would engage the principles in Rajalingam. There was thus no requirement on the part of the Authority to consider whether it was wrong.

Consideration

36    Mr Kay Hoyle does not submit that the principles stated by Sackville J in Rajalingam would not be equally applicable to the duty of the Authority. The Court is satisfied that they are. It proceeds on that basis.

37    In that case Sackville J summarised the circumstances when a tribunal (in that instance the Refugee Review Tribunal) will have a duty to take account of the chance that a past event might have occurred, even though the decision-maker thinks that it probably did not (at [67]):

In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at CLR 271–72; ALD 9; ALR 490, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 115 ALR 1 at FCR 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

38    Having regard to those principles, the Minister’s submissions are to be accepted.

39    The Authority expressly accepted the first relevant event (the abduction and disappearance of N) had occurred. It accepted that such abductions had frequently involved the police or security agencies. On a fair reading, the Authority was thereby accepting the Appellant’s claim that that had been the case with respect to N’s abduction.

40    The doubt the Authority had was limited to the reasons that had led to that event. In that respect, the Appellant had given conflicting accounts. The Authority’s statement that it could not be satisfied as to the reason for the abduction was effectively an open finding: it having no rational basis to choose as between the possible reasons that the Appellant had advanced to explain that event.

41    The Authority’s wholly understandable uncertainty as to which of the reasons advanced by the Appellant might explain the abduction is, however, of no consequence.

42    The significance of the accepted event (the abduction of N) in relation to the Appellant’s claims was the accepted participation of the Sri Lankan police and security services. The Appellant claimed that the Sri Lankan authorities’ visits to his home were significant, because he had been a subject of interest after telling the police that he recognised two of the people involved in his uncle’s abduction as police officers.

43    Again the fact of those visits was accepted by the Authority. Moreover, the critical findings of the Authority were that, having regard to the Appellant’s earlier accounts and the manner in which those visits were conducted, whatever might have been the basis of those visits, they were neither as frequent as the Appellant had asserted nor were they connected with the authorities having any ongoing interest in him. Those findings were firmly expressed and, on a fair reading, are subject to no qualification as would have required the Authority to go further and consider any alternative scenario:

At the SHEV interview he said that people had been to his house looking for him “many times”, but he had only mentioned the 2010 occasion in his written statement. I do not accept this. If the police or unidentified men had been to his home many times, I believe the applicant would have said so in his written statements, rather than mentioning details of only one or two specific occasions. It is possible that, given the circumstances of his uncle’s abduction, which I accept, security agencies may have visited the applicant’s home and I am prepared to accept that they may have done so most recently in 2010. However, the applicant says that he was at home on both occasions. Had the authorities really been intent on finding him and harming him, I do not accept that they would have just left, rather than either searching the house or waiting for his return. Accepting that the visits occurred, it is not clear why they did, although it is possible that they were somehow related to the disappearance of his uncle. However, I do not consider that they reflect any ongoing interest in the applicant as a suspected LTTE cadre, or because of concerns that he might pursue an investigation or reveal the identities of the police involved, or that they indicate an intention to actually harm him I do not consider that these one or two visits to the applicant’s home represent a serious level of adverse interest in the applicant, or indicate that he faces a real chance of serious harm on return.

44    The making of those findings of fact was for the Authority. It is not sufficient that a different decision-maker might have reached a different conclusion. No challenge is made to the Authority’s findings on the basis of legal unreasonableness. The primary judge did not err in dismissing the similarly premised submissions articulated in the court below.

45    I would dismiss Ground 2.

Proposed Ground 5

46    Proposed Ground 5, which the Appellant requires leave to rely upon, contends that the Authority erred in failing to exercise its power under s 473DC of the Act to interview the Appellant in relation to the following claims:

(1)    that the Appellant’s and his family’s ability to subsist had been affected by the arrest of one of his uncles and the disappearance of another uncle; and

(2)    that the Appellant’s uncle [P] was shot and killed by the Special Task Force who alleged he was a former Liberation Tigers of Tamil Eelam cadre.

The Appellant submits that the Authority’s failure in this regard amounted to an unreasonable exercise of the discretion under s 473DC. That was jurisdictional error.

The parties’ submissions

47    The Appellant submits that the discretion in s 473DC of the Act should be reasonably exercised, citing in support of that proposition Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 (CRY16) at [82] and DZU16 v Minister for Immigration & Anor [2017] FCCA 851; 321 FLR 306 (DZU16) at [84]. The Appellant submits that in the present case this Court should conclude that that discretion was not exercised reasonably, and that on the facts of this case where the Appellant had raised two new claims, the Authority’s failure to exercise that discretion reasonably was a jurisdictional error.

48    In oral argument Mr Foster submitted that the relevant unreasonableness asserted (the Authority failing to consider exercising its discretionary power to seek new information about his new claims) was required to be identified as having occurred at a time preceding the exercise of the Authority’s consideration of whether to receive any new information might be constrained by s 473DD of the Act:

HIS HONOUR: I suppose, again, I’m putting to you what I’m sure the Minister will say in relation to the – to the means of support issue: there’s nothing in the materials to suggest that the applicant is not capable of earning his own keep, is there?

MR FOSTER: No. No, your Honour. But ….the point is, really, related to the fact that the uncle – one uncle disappeared, that’s N; another uncle had been detained; and that affected the applicant and the applicant’s family’s ability to subsist. We’re not saying there’s any physical impairment. But that’s a claim, and – of course, paragraph 7, on court book 849, makes the – makes the point that the tribunal found that the claim hadn’t been made before the delegate. That’s the middle of paragraph 7. The tribunal wasn’t satisfied, toward the bottom of paragraph 7, there were exceptional circumstances to justify consideration of that new information; not satisfied, section 473DD were met.

So the way in which this argument is expressed is that before making that finding, before making the 473DD finding, the tribunal should have exercised its discretion reasonably to have inquired with the applicant about further information concerning the subsistence point, and – which it didn’t do. So that’s how – how one would look at a finding which, on its face, 473DD might otherwise have precluded the tribunal from considering that information.

And – and although – although the question about the other uncle being killed in year 2000 – similarly, because of – because of the history, we say, within the family – that is, one uncle killed, another uncle beaten up, and now we have a third – another uncle having been shot – then the tribunal ought to have inquired a bit more about that information, seeking information on this particular uncle, which it didn’t do. So that’s how we frame those two extra grounds, your Honour. …

49    The following discussion then took place as to the operation the Appellant was submitting should be given to s 473DC and s 473DD of the Act:

MR FOSTER: Well, we say that the issue of considering new material [pursuant to 473DD] is directed by an entirely different regime as to what would apply under 473DC.

HIS HONOUR: Let it be accepted that that is so, but in the absence of that new material being received, what was it that triggered the obligation to consider seeking any new material?

MR FOSTER: Merely the making of new claims that were not before the tribunal. So the process would be new claims are made. Under 473DC, the tribunal would be required to at least consider getting new information. If it didn’t seek new information under 473DC, then it would move on to 473DD and consider whether the new claims, as made without further information or documents, would be sufficient to allow it to “consider”, within the context of the entire decision, those new claims.

So our point is, your Honour, that there could be some confusion by applying the word “consider” to both 473DD and 473DC. It is a bit confusing, if one has to consider, under 473DD, the new information and then consider whether or not to get new information under 473DD, but the process, we say, commences with a reasonably exercised consideration of whether – sorry, a reasonable consideration – again, that’s that word, but I’m using it in a different context – a reasonable consideration of whether the tribunal should exercise a discretion to get new information, presumably – well, it may well be, in most cases, the tribunal, having considered it, might form a view there would be no further documents to get, perhaps, but that’s the point. The point is that there has to be at least some consideration reasonably exercised on the question of the discretion.

And then one moves to 473DD to consider whether what is then before the tribunal should be considered in terms of the overall decision-making process. It’s quite a separate thing. It’s quite separate altogether. It’s a two-step process. And merely for a tribunal to say, “Well, look, we’ve got this new claim, there’s nothing before me to satisfy 473DD(a) or (b) or (b)(i) and (b)(ii), therefore I’m not considering it”. In those sorts of circumstances, there might well be an argument that they have miscarried by not considering properly the discretion under 473DC. …

50    Submissions on those premises not having been previously articulated by Mr Foster in his written submissions, Mr Kay Hoyle sought leave to file short written submissions in response. I made orders permitting that to be done.

51    The Court intends no disrespect to the carefully articulated written submissions that Mr Kay Hoyle filed pursuant to that leave on 26 August 2019 by not referring to them. However, the Court does not see the need to do so. That is because I am satisfied, on first principles, that the Appellant’s case has insufficient merit in the circumstances of this proceeding as to warrant leave being granted to the Appellant to rely on proposed Ground 5, that ground not having been advanced in the court below: see Coulton v Holcombe [1986] HCA 33; 162 CLR 1 (Coulton).

52    The want of plausible merit lies not in any weakness of legal reasoning in the underlying propositions advanced by Mr Foster, which for these purposes I will accept to be correct. It is because, even on that assumption, no want of reasonableness in the Authority failing to consider seeking further information has been established.

53    Let it be accepted, for the purposes of analysis, that there may be instances whereby the articulation of a new claim to the Authority might make it legally unreasonable for the Authority not to first consider the exercise of its discretion under s 473DC of the Act to seek some new information prior to turning its attention to s 473DD to determine what, if any, of that new information it would be entitled to consider, this is not such a case.

54    Legal unreasonableness is inherently fact and context dependent.

55    DZU16 and CRY16 are binding authority for the proposition that there will be circumstances in which, notwithstanding the abrogation of the principles of procedural fairness in Pt 7AA of the Act, it will be legally unreasonable for the Authority to fail to consider exercising the discretion contained in s 473DC(3).

56    However, the overall context established by the provisions of Pt 7AA of the Act is that, subject to such limited exceptions, the Authority must consider the material referred to it under s 473CB without accepting or requesting new information or interviewing the referred applicant: Plaintiff M174/2016 v Minister for Home Affairs [2019] HCA 17; 367 ALR 711 per Gageler, Keane and Nettle JJ at [22].

57    It would be directly inconsistent with the overall context established by the provisions of Pt 7AA of the Act for this Court to accept a submission that the advancing of a new claim to the Authority by a review applicant, in and of itself, will engage the principle established in DZU16 and CRY16. There must be more: the facts must be such as to establish that, in contrast to the usual position, there is something which renders it, where no duty exists, unreasonable not to consider exercising the power.

58    In the context of Pt 7AA, there is nothing in the facts of this proceeding as might demonstrate that the Authority’s failure to consider exercising its discretion to seek new information with respect to the Appellant’s new claims was legally unreasonable. There was nothing before the Authority as would have alerted it, for example, to any incapacity on the Appellant’s part to have put those claims before the Minister’s delegate or to have himself advanced information in support of those claims.

59    This was not a case where the delegate failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable and which supplied a sufficient link to the outcome as to constitute a failure to review: see MZARY v Minister for Immigration and Border Protection [2018] FCA 374; 74 AAR 234 at [10]-[11] (Bromberg J).

60    There is nothing in the facts to suggest that it was legally unreasonable in the context of Pt 7AA for the Authority to have proceeded as it did in submitting the new claims and information the Appellant sought to adduce to the filter of s 473DD and proceeding to make its decision on the basis of such information as it was entitled to consider having done so. The Appellant does not assert any error in regard to the Authority’s reasoning in respect of s 473DD of the Act.

61    It is uncontentious that the Appellant did advance new claims but, as previously discussed, that in itself was insufficient to have required the Authority to consider whether to exercise its discretion to seek new information pursuant to s 473DC(3) of the Act. There is nothing in the nature of those claims, the facts before the Authority, or the circumstances of the Appellant that Mr Foster has identified as would take this matter outside the ordinary context provided for by the Act whereby the Authority was required to consider the material referred to it without accepting or requesting new information or interviewing the Appellant.

62    I would apply the principles stated in Coulton and refuse leave to the Appellant to rely on Ground 5.

Associate:

Dated:    19 September 2019