FEDERAL COURT OF AUSTRALIA
IMMIGRATION ASSESSMENT AUTHORITY
DATE OF ORDER:
27 September 2019
THE COURT ORDERS THAT:
2. The appeal be dismissed.
3. The appellant to pay the costs of the first respondent to be agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 The appellant is a citizen of Sri Lanka who arrived in Australia on 27 August 2012. The appellant applied for a Safe Haven Enterprise Visa (SHEV) on 24 February 2016. On 15 November 2016, the Minister’s delegate refused the application. On 26 June 2017, the Immigration Assessment Authority (the Authority) affirmed that decision. This is an appeal from an order made by the Federal Circuit Court of Australia on 8 November 2018 dismissing the application to review that decision of the Authority.
2 In the Court below, the appellant raised one ground of review which was later abandoned at the hearing. However, by submissions filed on 25 October 2018, the appellant sought leave to amend his application and to add a new ground. The primary judge refused the appellant leave to amend his application. While his Honour accepted the explanation for the delay in filing the ground he was not persuaded it presented a reasonable basis for the delay. He concluded that although the respondent was not prejudiced, as he was able to address the proposed ground, the ground did not have sufficient prospects of success to warrant the grant of leave.
3 The appellant was initially unrepresented in this Court and drafted the grounds of appeal. However, subsequent to the matter being listed counsel was briefed and an amended notice of appeal was filed. It was those grounds which were pursued at the hearing.
4 Those grounds are as follows:
(1) The primary judge should have found that the Authority did not complete the exercise of its jurisdiction or acted in a legally unreasonable way because it failed to address whether it should consider the new information: "that the appellant had been recognised as a refugee by organisations such as UNHCR, IAM, UN and the Red Cross".
(2) The primary judge should have found that the Authority did not complete the exercise of its jurisdiction or acted in a legally unreasonable way because it excluded as new information material which was not new information being untranslated documents including a birth certificate and a marriage certificate and an untranslated document from a principal of an organisation in Mullaitivu dated 24 November 2010.
5 For the reasons below, leave to rely on the grounds is granted, however the appeal is dismissed.
The decision of the Authority
6 The Authority noted the history of this matter which included that on 27 July 2013 the appellant made an invalid application for a protection visa, and on 24 February 2016 he made an application for a SHEV. It is that latter application which the Minister’s delegate refused which gives rise to these proceedings. The Authority also detailed the proceedings before it, and submissions and other material received from the appellant. These matters, which reflect opportunities to provide information, were relevant to the Authority’s consideration of the information provided.
7 The Authority listed the claims made by the appellant, which is later summarised as follows:
The applicant is a male Catholic Tamil from the Northern Province aged approximately 29 years, who previously was suspected of being involved with the LTTE and detained at a rehabilitation centre for approximately 10 months. He has attended diaspora memorial events in Australia and intends to publish poetry about the experience of Tamils during the war and will be returning as an asylum seeker who departed the country illegally. Noting the applicant’s history and profile, and having regard to the country information about the situation in Sri Lanka, I am not satisfied that he faces a real chance of serious harm now or in the reasonably foreseeable future.
8 As explained in more detail below, the Authority accepted some of the appellant’s claims, but rejected others.
9 Suffice to say at this stage that the Authority concluded, having regard to the appellant’s history and profile, and to the country information about the situation in Sri Lanka, that it was not satisfied that the appellant faced a real chance of serious harm now or in the reasonably foreseeable future. It also concluded that there were not substantial grounds for believing that, as a consequence of being returned from Australia to Sri Lanka, there was a real risk that the appellant would suffer significant harm. On the basis of these findings the Authority also rejected the appellant's claim under the complementary protection criteria.
Federal Circuit Court
10 As the grounds now relied on were not raised in the Court below it is unnecessary to consider the reasoning of that Court. Suffice to say that in that Court after the application for review was filed the appellant sought leave to amend to raise a further ground relating to the Authority’s consideration of the new information. The delay in identifying the ground was said to be that the ground only came to light when the matter was reviewed. The appellant was denied leave to rely on the ground.
Leave to appeal
11 As noted above, although the appellant was represented in the Court below, neither of the two grounds now relied on were raised. Leave to rely on these grounds in this Court is required.
12 The relevant principles for the grant of leave are well established and are summarised in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs  FCAFC 158; (2004) 238 FCR 588 at – where the Full Court said:
In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff  HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd  FCA 1833; (2001) 117 FCR 424 at - and .
In Coulton v Holcombe  HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.
13 The respondent opposed leave being granted to rely on the new grounds principally for two reasons. First, that the appellant was represented in the Court below: Iyer v Minister for Immigration & Multicultural Affairs  FCA 1788 at . Second, that advancing on an appeal from a trial court’s judgment fresh grounds challenging an administrative decision is contrary to the legislative scheme under the Migration Act 1958 (Cth) (Migration Act) that explicitly limits the Court’s original jurisdiction: AAM15 v Minister for Immigration and Border Protection  FCA 804 at . The respondent argued that this Court is not a trial court.
14 Nonetheless the grounds were fully argued recognising that merit in the proposed grounds is an important consideration: see for example, BOZ16 v Minister for Immigration and Border Protection  FCA 418 at .
Ground 1: the Authority failed to address whether it should consider new information
15 This ground relates to an aspect of the appellant’s submission to the Authority, which was provided in response to the Authority’s invitation to do so. In the submission, the appellant stated “the organisations such as UNHCR, IOM, UN, Red Cross have recognised me as a refugee and the relevant evidence could be obtained”.
16 The appellant submitted that while the Authority refers to and considers the other aspects of the submission, it did not consider that submission. Relying on BVD17 v Minister for Immigration and Border Protection  FCAFC 114; (2018) 261 FCR 35 at ; Soliman v University of Technology, Sydney  FCAFC 146; (2012) 207 FCR 277; SZSKR v Minister for Immigration and Border Protection  FCCA 2 at ; FKO17 v Minister for Home Affairs  FCA 98 at , the appellant contended that while the Authority does not have to provide reasons for its procedural decisions in the course of a review, this does not mean that inferences cannot be drawn from the reasons which it does provide. The appellant argued that the otherwise comprehensive way in which the contents of the submission were analysed in the Authority’s reasons exposes the failure to address this information, and that the error was material. The appellant submitted that had the Authority addressed the new information then it may have taken into account the fact that the appellant had authorised information to be sought from the UNHCR in assessing whether to consider this information in making its decision. Further, that the appellant’s willingness to authorise the department to obtain his information from the UNHCR in circumstances where he claimed they had accepted he was a refugee may have been a matter that the Authority took into account in its credibility assessment. It was the appellant’s contention therefore, that the Authority may have considered whether to use its powers in s 473DC to seek further information from the department or UNHCR to determine whether his account to the department was corroborated by his account to the UNHCR.
17 The appellant also relied on Minister for Immigration and Border Protection v CPA16  FCAFC 40 (CPA16) at , DPI17 v Minister for Home Affairs  FCAFC 43 (DPI17) at  and , and CHZ19 v Minister for Home Affairs  FCA 1112 (CHZ19) at ,  in relation to the assessment of materiality in that regard.
18 The appellant submitted that this was material because had the Authority recognised the new information about registration with the organisations, it would have had to consider whether s 473DD was satisfied. In making that consideration, it would have recognised that this is personal information and, if true, would have raised the question as to the basis on which the recognition was made. If it was on the basis of the appellant’s claims about going to India, which were rejected by the Authority, it would have removed that inconsistency. It was possible that the Authority might have decided to exercise its powers under s 473DC(3) to make inquiries of the Department to contact the organisations. The appellant submitted there were a number of steps which might have occurred, and the appellant invited the Authority to take those steps.
19 The respondent submitted that the Authority already had information before it that indicated that the appellant had been registered with the UNHCR and therefore the revelation that organisations such as the UNHCR had recognised him as a refugee was not new information, or, if it was new information, it was in essence the same information that had been before the delegate such that no jurisdictional error arises from the Authority’s failure to expressly refer to this part of the submission. The respondent submitted that there was no reason for, or obligation on, the Authority to refer to this information because the fact that an international organisation “such as” one of the organisations listed had “recognised” the appellant as a refugee (noting that it is unclear from the information when this recognition was said to have occurred), was not material to the outcome of the review. The respondent contended that the task for the Authority was to determine for itself, on the basis of the information it was permitted to consider, whether the appellant was owed protection obligations under the Migration Act. Further, the respondent argued that the willingness of the appellant to authorise getting information from an international organisation cannot have an impact on the Authority’s assessment of the credibility of some of the appellant’s claims. Instead, the respondent’s submission was that the Authority gave clear reasons as to its rejection of the claims it rejected, and it did not find the appellant entirely without credit, in that it accepted parts of his claims.
20 The respondent also submitted that the part of the claimed new information which appears to be a request that the Authority enquire with the organisations about “evidence”, is not new information: see Plaintiff M174/2016 v Minister for Immigration and Border Protection  HCA 16 at . A request that an enquiry be made is not the “communication of knowledge about some particular fact, subject or event”. Referring to ss 473DB(1) and 473DB(2), the respondent argued that the Authority was not under any duty to conduct an enquiry, even if requested to do so by the appellant. Therefore, the Authority did not fall into error in failing to expressly refer to a request that it obtain new information from third party sources.
21 The statement relied on by the appellant in support of this contention is in a submission provided to the Authority in a document entitled “explanations on the reasons for rejection”. The Authority described that submission as follows:
Also included with the referred materials were untranslated documents, including a birth certificate and marriage certificate, and an untranslated document from a Principal of an organisation in Mullaitivu, dated 24 November 2010. These documents are new information. As no English translations of the documents have been provided, I am unable to assess their veracity or purpose. I am not satisfied there are exceptional circumstances to justify considering this information.
22 A number of observations can be made.
23 First, it may be accepted that the Authority did not expressly refer to the statement when considering s 473DC, or in any other part of its reasons. Having said that, the statement does not of itself support any of the claims as to why the appellant contended that he was entitled to protection.
24 Second, there was other information before the Authority which, if it chose, could have provided a basis to exercise its powers under s 473DC(3). This information was: (1) a letter from the Red Cross dated 2005 which related to the effect upon his family of the tsunami; (2) a Return Form from the UNHCR, dated 25 January 2010 (a time proximate to when the appellant claimed he approached international organisations); and (3) the appellant’s entry interview in which he indicated in answer to set questions that he had contact with the UNHCR in 2005 with the outcome being recorded as “registration only”, and a registration with the IOM in 2009-2010.
25 Third, the statement is not a basis for a claim, rather, as argued by the appellant, if accepted, it could lead to steps being taken which could lead to information being obtained which could affect the appellant’s credibility. The appellant submitted that claims were rejected on the basis of his credibility (referring particularly to paragraph  of the reasons).
26 Fourth, the appellant’s reliance on the adverse credibility finding, directs attention to the Authority’s reasons. While it is correct that in relation to some matters raised for the first time in the appellant’s visa interview the Authority made adverse credibility findings, it also made a number of findings of credit in the appellant’s favour in relation to other claims.
27 The Authority observed that those matters raised for the first time in that interview, given the nature of the information and its significance to his claims, would have been expected to have been raised by the appellant in his entry interview or as part of detailed statements included with his 2013 and 2016 applications (noting he was represented by a migration agent on each application). They were not matters, given their nature and significance, which would have been overlooked. There was no explanation provided as to why the claims had not previously been raised and they were not supported by any other credible evidence or information. There was an absence of any corroborative information. There were also a number of additional reasons given by the Authority in relation to the specific claims raised that affected the appellant’s credit. For example, in relation to an allegation of a court appearance, the Authority referred to, amongst other things, the fact that the appellant’s representative in a post interview submission conceded that it did not appear that the appellant had been produced in court; in relation to a threating telephone call while in Australia, the appellant’s evidence was inconsistent with his wife’s evidence; and his claim that he was told to report to the fourth floor of the CID office is inconsistent with the country information. Clear reasons were given by the Authority for its credibility findings.
28 It is in that context that the appellant’s submission is to be considered.
30 Contact with these international organisations by the appellant was not new information. The information referred to above at  was enough information for the Authority to consider whether to obtain new information from the organisations, in the context where a Pt 7AA review is ordinarily conducted on the papers: see for example: DGZ16 v Minister for Immigration and Border Protection  FCAFC 12; (2018) 258 FCR 551 at ,  and . The Authority would have been entitled to consider if this statement was reflective of the information it already had. Nothing in the appellant’s submission explained that this was different to the information already provided.
31 The basis of the appellant’s argument turns on the appellant stating he has been recognised as a refugee, in a context where the appellant had said he was registered only. It was contended by the appellant that the registration was “obviously” new information, and the meaning of the statement is that the appellant was recognised as a refugee on the same basis that he is putting forward to the Authority. There was no material before the Authority as to any difference in meaning in the statements, and if so, what that was. Moreover, if there is a difference between the two, it follows that the later statement is inconsistent with the earlier information that he was registered only.
32 Even assuming that the Authority did overlook the statement, the statement and whether it was new information does not, without more, assist the appellant. Indeed, as noted above, the appellant’s argument is dependent on the possibility of steps being taken and where those steps could lead. It is dependent entirely on the statement triggering these steps (where the material already before the Authority had not). Moreover, those steps presuppose an acceptance by the Authority that the statement is new information that could have been considered under s 473DD, the correctness of the statement, and also necessarily involves the Authority considering and exercising its discretion in s 473DC(3) to obtain further information.
33 The appellant relied on the authorities referred to above to support that that reasoning process was sufficient to establish materiality, but as is clear from those authorities each case must involve a fact specific assessment in light of an analysis of the appellant’s claims and the Authority’s reasons. The question of materiality is a question of fact.
34 For example, this case can be contrasted with EVS17 v Minister for Immigration and Border Protection  FCAFC 20 (EVS17) where the Court addressed the consequences of a failure by the Secretary to provide various medical documents to the Administrative Appeals Tribunal. The nature of the documents in that case, being those which were required to be provided to the Tribunal, is different to a statement in the appellant’s submission which is in question in this case. Moreover, the reasons for why the documents could have affected the outcome in EVS17 were not dependent on further steps being taken. While the Court did refer to the fact that the Authority may have wanted to invoke s 473DC(3) if it had received the documents, that was only one matter raised; the contents of the documents themselves could have affected the outcome. This case is one step further removed from that.
35 Similarly, the appellant’s reliance on DPI17 is misplaced. That case concerned whether the Authority’s failure to consider the exercise of the power under s 473DC was legally unreasonable in a context where the Minister’s delegate had said to the appellant’s representative that inconsistencies in his evidence were not material but the Authority made findings adverse to the appellant based on those inconsistencies. Leaving aside that the argument in this case is not one of legal unreasonableness, DPI17 was very fact specific. The appellant relied particularly on the process of reasoning described by the Court, submitting that it is “almost three steps”, being; (1) that the Authority had to consider exercising the power to obtain new information, (2) then exercise the power, and then (3) receive additional information from which the Authority’s decision might have been different. The appellant relied on that reasoning to support his argument that he could rely on the statement in this case as triggering s 473DC(3) to have a possible effect, as opposed to relying on the contents of the statement. However, the appellant’s submission does not take into account the particular circumstances in that case, which differ from those before this Court.
36 While the cases relied on by the appellant provide guidance as to the application of the relevant principles, this case turns on its facts.
37 In the circumstances of this case, including those referred to in paragraphs -, - above, it is not realistic to say the statement (assuming it had not been considered) could have resulted in a different decision. Materiality has not been established.
Ground 2: exclusion of information
38 This ground relates to paragraph  of the Authority’s reasons:
Also included with the referred materials were untranslated documents, including a birth certificate, and marriage certificate and an untranslated document from a principal of an organisation in Mullativu dated 24 November 2010. These documents are new information. As no English translations of the documents have been provided, I am unable to assess their veracity or purpose. I am not satisfied that there are exceptional circumstances to justify considering this information.
39 The respondent accepted that the documents referred to therein were documents which were before the delegate and which formed part of the material submitted in support of the SHEV application. The documents were not new information.
40 The appellant argued that this was a material error as the Authority claimed to have regard to the material referred to it under s 473CB of the Migration Act, when that was not the case. As the appellant submitted, the Migration Act provides that the Authority must review a fast track reviewable decision by considering the material under s 473CB. The appellant submitted the Minister’s delegate in his reasons noted that “the applicant also provided a range of documents which supports his narrative”, and that if the Authority considered the material then, like the delegate, the Authority may have decided that the material supported his narrative. Therefore, in the appellant’s submission, this may have had an impact on the overall assessment of the case. The appellant relied on EVS17 at  and submitted that represented an analogous situation. Indeed, the appellant argued that he was in a stronger position than EVS17 as he contended the gravity of the failure and the lack of fairness is more serious. This is in the context where the Authority found some of the appellant's claims not to be credible. As with ground 1, the appellant also relied on CPA16 at , DPI17 at  and , and CHZ19 at ,  in relation to the assessment of materiality in that regard.
41 The appellant also drew attention to the comments of the Full Court in CPA16 at :
We commence by noting that, in a case such as the present, where the Authority found that CPA16’s documentary evidence relating to his employment at the TV station was not cogent and it made adverse credibility findings about CPA16’s claims, the task of deciding whether an omitted document is material is not without difficulty. As Gleeson CJ said in Aala (at ) “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” Credibility findings are often non-linear in nature: VAAD v Minister for Immigration and Multicultural Affairs  FCAFC 117 at  (Hill, Sundberg and Stone JJ); SZTFQ v Minister for Immigration and Border Protection  FCA 562 at - (Lee J). We respectfully agree with Kirby J’s observations in Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1;  HCA 62 at  where his Honour said:
...decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.
42 On the other hand, the respondent submitted that the Authority having erroneously treated the documents as new information and excluding them, could not have made a difference to the outcome: Hossain v Minister for Immigration and Border Protection  HCA 34; (2018) 92 ALJR 780 (Hossain). The respondent submitted that the documents had not been translated into English and therefore their content was unclear, and, as the Authority noted, their purpose could not be verified. The respondent contended that the appellant does not submit that there were any relevant issues arising on the review that could have been influenced by reference to the appellant’s birth certificate or marriage certificate and that it is unclear what the 24 November 2010 document purported to be, or how it could have influenced the outcome before the Authority. Even if the Authority had considered the documents on their merits, inevitably the Authority would have been unable to give any weight to them due to the fact they had not been translated.
43 The respondent’s submission should be accepted.
44 The error, unfortunate though it clearly was, could not have affected the outcome: Hossain at  –  per Kiefel CJ, Gageler and Keane JJ. That the documents related to personal information is insufficient to establish materiality. The documents were in Tamil and no translations were provided to the Authority. From the few English words in two of the documents, it appears they are the appellant’s birth certificate and marriage certificate. However, the Authority accepted the appellant’s identity. Neither of those documents related to the claims made. As to the third document, there is nothing about that document to indicate what it is. In addition to no translation being provided, the submission providing the document gives no insight as to its relevance. The appellant had the opportunity to provide a translation. As the Authority found, given the documents had not been translated it was unable to assess the veracity or purpose of the documents. That conclusion still holds. Even if the Authority had considered the documents no weight could have been placed on them.
45 The appellant’s argument then is one that requires the Authority to exercise its discretion to obtain translations of the documents, and as a result of that having been done, ascertaining the nature of the documents, and from there arguing they could have made a difference to the Authority’s determination. Given that the appellant had never put forward a translation or explained the purpose of the documents, that conclusion is entirely speculative. Moreover, the Authority is not required to obtain a translation. Indeed, in relation to another untranslated document the Authority concluded at paragraph  that it could not place any weight on the untranslated portions with respect to the appellant’s claims. It was open to the Authority to take that approach, and it is not suggested that it was an error.
46 This case is unlike CPA16, as the appellant does not contend the matters which were not referred to the Authority were on topics on which there were adverse credibility findings in relation to the claims made.
47 This ground has not been established.
48 Leave to rely on the amended grounds is granted. The appeal is dismissed.
Dated: 27 September 2019