FEDERAL COURT OF AUSTRALIA

CLN17 v Minister for Home Affairs [2019] FCA 1637

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and the application to rely on new grounds be dismissed.

2.    The applicant pay the costs of the first respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The applicant has applied for an extension of time in which to appeal a decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) affirming the decision of a delegate of the first respondent not to grant the applicant a protection visa. An extension of time is required because the applicant was 18 days out of time in which to file his appeal. In considering whether to grant an extension of time, the Court has regard to any explanation for the delay, any prejudice that may be suffered were an extension of time granted, and the prospects of success, as there is no utility in granting an extension of time if there is no realistic prospect the appeal will succeed: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 186 (Wilcox J); MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 (Mortimer J) at [3]. In determining whether to grant an extension of time, the Court is not required however to conduct an exhaustive or detailed analysis of prospects. The evaluation of the prospects task is carried out at a reasonably impressionistic level and the enquiry is whether the ground is sufficiently arguable or has reasonable prospects of success: MZAPB v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 (Mortimer J) at [62]. The Minister has opposed the grant of an extension of time.

2    In support of his application the applicant filed an affidavit explaining the reasons for the delay. In his affidavit he stated that he was unable to file the notice of appeal on time because of financial incapacity, a “family incident” and his ongoing medical condition, being a heart condition. The Minister was critical of the explanation, submitting it was inconsistent with an earlier affidavit which the applicant had filed in support of his application in which he gave as his reasons for the delay that he was “indigent”, “badly affected by measles since early February”, and, due to his illness, was unable to go out or get any help. The Minister also noted that the applicant adduced no medical evidence to demonstrate that ill health was the reason. The Minister’s criticisms are properly founded and I consider that the explanation provided was less than satisfactory but, given that the delay was only 18 days, I do not think that the lack of a satisfactory explanation is reason of itself to refuse the extension of time. As the Minister has not claimed that he would be prejudiced by an extension of time, the real issue for determination is whether the proposed appeal has sufficient prospects of success to warrant an extension of time.

3    The proposed appeal relies on a new ground not raised below. The proposed ground alleges that the primary judge failed to consider whether the IAA fell into jurisdictional error by:

(a)    failing to consider new information provided by the applicant; and

(b)    adopting an “erroneous construction of s 473DD” of the [Migration Act 1958 (Cth)], by failing to consider “explanations and reasons advanced by the [applicant]” and by adopting “an unduly narrow construction of s 473DD”.

4    The particulars identified four “classes” of “new information” as the subject of this ground, despite acknowledging that the applicant’s migration agent had submitted to the IAA that they were not “new information”. The claim with respect to the class described as the “Sinathuri information” was not pressed at the hearing. The other three classes of “new information” are described as:

(a)    information about an event in May 2016 (“May 2016 information”);

(b)    information that “things” given to the applicant to deliver to the LTTE were concealed and he did not attempt to view the contents because he feared harm from the LTTE (“LTTE information”); and

(c)    information relating to the applicant’s mother’s attempts to release the applicant from detention at the Sri Bharathy army base (“detention information”).

5    Each piece of “new information” was said to be contained in a statutory declaration which was provided to the IAA by the applicant.

6    By way of background, the applicant is a Sri Lankan citizen who applied for a protection visa. In support of his application, the applicant raised the following matters:

(a)    The applicant was raised in Jaffna. In 1987, the applicant’s uncle was killed while fighting for the LTTE. In 1996, he and two of his uncles relocated to Vavuniya, which was controlled by the LTTE.

(b)    In 1997, the applicant and his uncles surrendered to the SLA. In January 1998, they were taken to a camp and repatriated to Madduvil West. In April 1998, they were ordered to provide food to two LTTE officers and to deliver things for them.

(c)    In 2002, the applicant’s aunt was killed while serving for the LTTE. In December 2002, his uncle, KA, was beaten by the SLA for protesting. Soon after, four or five SLA officers, while searching for KA, detained, interrogated and beat the applicant. He was released in January 2003.

(d)    In 2006, the applicant was made to report to the SLA. He moved to Qatar in April 2006 as a result.

(e)    In April 2011, he returned to Sri Lanka. Soon after, two SLA officers interrogated him about his whereabouts and told him to report to an SLA camp. He did so, and was told to report each week thereafter. When he reported, he was questioned and physically assaulted.

7    The IAA accepted that the May 2016 information was new information but was not satisfied that the information could not have been provided to the delegate, or that there were exceptional circumstances to justify considering it. As the IAA considered that the remainder of the statutory declaration responded to issues arising from the evidence before the delegate which was discussed in the delegate’s decision, the IAA took the view that such information was not “new information”.

8    The principles on which this Court exercises its discretion as to whether leave should be granted to raise a new ground on appeal were explained by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 (Kiefel, Weinberg and Stone JJ) at [46]-[48] as follows:

…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 (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[24] and [38].

In Coulton v Holcombe (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. ...

It was submitted that it is expedient in the interests of justice to grant leave as the proposed grounds have merit and no prejudice to the Minister is evident.

9    In this case, the applicant was represented by counsel in the court below. The explanation as to why the grounds now sought to be relied on were not raised in the FCC was that “new counsel approached the appeal from a different perspective”. I do not accept that the fact that new counsel has taken a different approach constitutes either an adequate or satisfactory explanation. Nor do the proposed grounds have sufficient merit to warrant an extension of time or leave to rely on the proposed new grounds.

10    Section 473DD of the Migration Act 1958 (Cth) provides as follows:

Considering new information in exceptional circumstances

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

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

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

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

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

May 2016 information

11    In his statutory declaration the applicant stated that:

In or around May 2016, two Sri Lankan Army officers attended my family home in order to question my family about my whereabouts. However, as my family were not present at this time, the Sri Lankan Army officers instead questioned my neighbours about my whereabouts and the whereabouts of my family members. My neighbours informed the Sri Lankan Army officers that no one currently resides at our family home. The Sri Lankan Army officers instructed my neighbours to immediately attend the local police station and inform them if my family members or I returned back to our family home.

To the extent that the above constitutes new information, there are exceptional circumstances for taking account of it because:

a.    a failure to do so may result in the Delegate's Decision being affirmed, notwithstanding that I am at risk of relevant harm on return to Sri Lanka and that Australia owed protection obligations in respect of me;

b.    the information was not available to me during the preparation of my protection visa application, which was lodged on 13 November 2015 or my protection visa interview 1 April 2016 as the event occurred after that time.

The above is information is:

a.    credible is the sense that it is able to be believed on the basis that the Sri Lankan authorities are known to question Tamils in relation to their whereabouts; and

b.    personal in the sense that it is about the Sri Lankan authorities continued interest in my whereabouts.

The above information was not known by the Delegate, and had it been known may have affected the consideration of my claims.

(Errors and emphasis in original.)

12    The IAA accepted that the May 2016 information was not available to the applicant when he lodged his visa application or at the time of his interview as the event occurred later. In disregarding the May 2016 information, the IAA reasoned:

However, the delegate’s decision was made on 17 October 2016, some five months after the claimed event. The applicant was legally assisted before the Department, including at the PV interview. The applicant was advised at the PV interview that the IAA could only consider new information in limited circumstances. Given that the claimed visit appears to relate to events in issue before the delegate, their relevance to the applicant’s PV application would have been apparent. I am not satisfied that the information could not have been provided to the delegate. I am also not satisfied that there are exceptional circumstances to justify this new information.

13    The applicant contended that the IAA erred in its approach in determining whether the preconditions in s 473DD were met with respect to the May 2016 information in that the IAA only considered the requirement in s 473DD(b)(i) and failed to consider whether the information satisfied the requirement in s 473DD(b)(ii). The applicant further contended that the IAA adopted an inappropriately narrow construction of “exceptional circumstances”.

14    The requirement in s 473DD(b)(ii) does raise a different consideration to s 473DD(b)(i). The circumstance of which the IAA needs to be satisfied in order to meet the criterion in s 473DD(b)(i) is that the new information that is given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Minister or delegate made the decision to refuse to grant the protection visa. The circumstance of which the IAA needs to be satisfied in order to meet the criterion in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the applicant; and (3) had the information been known by either the Minister or the applicant, the information may have affected the consideration of the applicant's claims: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481; [2018] HCA 174 (“Plaintiff M174”) at [34].

15    There was no express reference to the condition in s 473DD(b)(ii) in the IAA’s reasons, although it was raised by the applicant, and it does not appear from the reasoning that the IAA’s conclusion that the requirement of exceptional circumstances under s 473DD(a) was not met was based on a consideration of, or took into account, the requirement under s 473DD(b)(ii). As the May 2016 information went to an element of the applicant’s claim, I accept that it is reasonably arguable that the IAA fell into error in its consideration of whether this information met the requirements of s 473DD. However, to constitute jurisdictional error the failure to consider the limb in s 473DD(b)(ii) must be shown to be material to the IAA’s decision in the sense that compliance could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 at [2], [45], [49]. I am not satisfied that there is a realistic possibility that the IAA’s decision could have been different, had it taken that information into account. The information does not impugn any aspect of the IAA’s reasoning which led it to find that the applicant was not a person of interest to the SLA, as he claimed, nor undermine the basis upon which the applicant’s claims were rejected as implausible. Furthermore, the information was not corroborated by any other source (documentary or otherwise) and there is no rational basis for inferring that the IAA might possibly have found that information to be credible in circumstances where the IAA rejected the applicant’s claims as lacking plausibility in light of the objectively available evidence.

LTTE information

16    In his statutory declaration the applicant stated that:

When I was given “things” by [the LTTE] to deliver, these items were concealed. I was not able to identify the contents and I did not attempt to view the contents as I feared harm from the LTTE. Given that the items were already concealed when I received them from the LTTE, I did not know of the contents.

To the extent that the above constitutes new information, there are exceptional circumstances for taking account of it because:

a.    a failure to do so may result in the Delegate's Decision being affirmed, notwithstanding that I am at risk of relevant harm on return to Sri Lanka and that Australia owed protection obligations in respect of me;

b.    the information is not new in that it is really an expansion of my description of the “things” and how they were provided to me.

The above is information is:

a.    credible is the sense that it is able to be believed in that it is not contradictory to what I have claimed in the past; and

b.    personal in the sense that it is about why I am unable to confirm the contents of “things” which I was asked to deliver for the LTTE.

The above information was not known by the Delegate, and had it been known may affected the consideration of my claims.

(Errors and emphasis in original.)

17    Although being put forward as “new information”, the statutory declaration incongruously stated that the information was not new information and if, and to the extent that, it contained new information, the statutory declaration did not identify the content of the “new information”. In oral submissions, it was argued that the “new information” was the applicant’s explanation as to why he did not know what was in the contents of the “things” that he delivered for the LTTE, namely that he did not attempt to view the contents “because [he] feared harm from the LTTE”. It was submitted that the explanation was “new information” because that fact was not before the delegate when he made his decision and therefore, the IAA erred in concluding that the LTTE information was not new information for the purposes of s 473DD.

18    In Plaintiff M174/2016, the High Court held that the expression “new information” in s 473DD is limited to “information” in the ordinary sense of a communication of knowledge about some particular fact, subject or event (at [24] per Gageler, Keane and Nettle JJ, with whom Gordon J agreed at [78] and Edelman J agreed at [100]). The applicant’s assertion that he feared harm from the LTTE as the reason why he did not attempt to view the contents of the “things” he delivered for the LTTE is capable of being characterised as new information as it conveyed a fact which was new but, for the following reasons, the ground relating to this item of “new information” is misconceived.

19    It appears, as the IAA stated, that the statutory declaration was made in response to issues arising before the delegate, who did not accept that the applicant had provided delivery services for the LTTE. The delegate’s reasons included that, when asked at the interview what “things” he was required to deliver, the applicant said he did not know and he simply put whatever things the LTTE gave him in his bag. It appears that the applicant did not offer the explanation that he feared harm from the LTTE and the delegate found it implausible the applicant did not know what he delivered given that the applicant himself put the “things” in his bag and did the delivery for two years. The IAA, on the other hand, did accept the applicant’s claim that he had provided delivery services for the LTTE but found that it was not satisfied that the SLA considered that the applicant’s delivery duties for the LTTE were significant enough to impute the applicant with a profile of interest. That finding did not depend on what the applicant delivered or the applicant’s knowledge (or lack of knowledge) about what he delivered but was based on the rejection of the applicant’s claim that the SLA had an interest in the applicant when he returned to Sri Lanka in 2011 or showed any interest in him for his LTTE connections. An attempt was made to relate the materiality of the new information with the finding of the IAA that the applicant’s delivery duties for the LTTE were not significant enough to impute him with a profile of interest. The materiality of the explanation as a matter bearing upon the IAA’s finding is simply not evident. The IAA considered the available evidence and made findings consistent with that evidence. It was not demonstrated how the new information constituted by the explanation could realistically have altered the IAA’s finding that the applicant was not a person of interest to the SLA.

The detention information

20    In his statutory declaration the applicant stated that:

My mother attended the camp on a daily basis and make inquiries with the Sri Lankan Army officers as to when I would be released. The Sri Lankan Army officers would inform my mother that I would be released the next day. When my mother attended the camp the next day, the Sri Lankan Army officers informed her that I was required to remain for further questioning. This occurred regularly. Therefore, as my mother was unable to secure my release, she sought assistance from the Grama Sevaka to secure my release, approximately one month after my detention.

To the extent that the above constitutes new information, there are exceptional circumstances for taking account of it because:

a.    a failure to do so may result in the Delegate's Decision being affirmed, notwithstanding that I am at risk of relevant harm on return to Sri Lanka and that Australia owed protection obligations in respect of me;

b.    the information is not new in that it is an expanded description of my answers already provided to the Delegate.

The above is information is:

a.     credible is the sense that it is able to be believed on the basis that it is not contradictory and rather a more detailed version of information I have provided; and

b.    personal in the sense that it is about the length of time I was detained and my mother's actions to secure my release.

(Errors and emphasis in original.)

21    The ground relating to this “new information” is similarly misconceived. It was not new information that the applicant’s mother “sought assistance from the Grama Sevaka to secure [his] release, approximately one month after [his] detention”. The delegate considered and rejected that claim, finding it implausible and illogical that the applicant’s mother would wait for more than one month to request his release if the Grama Sevaka could secure his release simply because his mother requested it. The “new information” seemed to be the applicant’s explanation that his mother had attempted to obtain the release of the applicant and sought assistance from the Grama Sevaka when she could not secure it. As the IAA rejected the applicant’s claim that he had been detained at all for reasons that did not turn upon the implausibility of the applicant’s claim about how he secured his release, it is not evident that this “new information” had any materiality so that it can be said there is a realistic possibility that the IAA’s decision could have been different, had it taken that information into account.

Conclusion

22    As the proposed grounds lack any evident merit, both the application for an extension of time in which to appeal and the application to rely on new grounds should be dismissed.

Associate:    

Dated:    10 October 2019