FEDERAL COURT OF AUSTRALIA

DVD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 332

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court of Australia on 17 July 2019 be set aside and in lieu thereof:

(a)    the decision of the second respondent dated 1 December 2016 is set aside and the matter is remitted to the second respondent for determination according to law; and

(b)    the first respondent is to pay the appellant’s costs in the proceedings in the Federal Circuit Court.

3.    The first respondent is to pay the appellant’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

PERRY J:

1.    INTRODUCTION

1    The appellant is a Tamil from the Northern Province of Sri Lanka. He arrived in Australia as an Unauthorised Maritime Arrival and applied for a Safe Haven Enterprise Visa (Class XE) Subclass 790 visa (protection visa) on 20 May 2016. On 14 October 2016, a delegate of the first respondent, the Minister for Home Affairs (the Minister), refused to grant the appellant the protection visa.

2    The delegate’s decision was referred to the Immigration Assessment Authority (IAA) on 20 October 2016 on a fast track review under Part 7AA of the Migration Act 1958 (Cth) (the Act). The IAA is established by Div 8 of Pt 7AA of Act and is part of the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT). The IAA decided to affirm the delegate’s decision not to grant the appellant the protection visa on 1 December 2016.

3    This is an appeal from the decision of the Federal Circuit Court of Australia (the FCC) dismissing the appellant’s application for judicial review of the IAA’s decision given on 17 July 2017. While ex tempore (oral contemporaneous) reasons were given for the decision on that date by the primary judge, I note that written reasons were not provided until 13 September 2019, well outside the time within which an appeal as of right could be lodged under the Federal Court Rules 2011 (Cth). Observations have been made elsewhere by the Full Court of this Court as to the undesirability of this practice and as to steps which can readily be taken by a court to protect an individual’s right of appeal pending publication of written reasons in such cases: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26] (the Court); CQX18 v Minister for Home Affairs [2019] FCAFC 386 at [11(2)] and [13] (the Court). It is therefore unclear why such cases continue to arise.

4    While in this case the notice of appeal was filed within time on 1 August 2019, it initially raised the failure to publish reasons enabling the appellant to elaborate upon his grounds of appeal as a ground of appeal (AB208). An amended notice of appeal substituting new grounds for those originally pleaded was filed only following publication of the written reasons and upon the appellant obtaining legal representation.

5    The amended notice of appeal identifies the following grounds, namely, whether the FCC erred in holding that:

(1)    it was unnecessary for the IAA to engage in analysis beyond identifying the integers of the appellant’s claims to fear harm by reason of his campaign to close down an army canteen on school premises, and the IAA’s finding at [23] of its decision was dispositive of the appellant’s claim to fear harm on this ground (FCC decision at [32]-[33] and [41]-[42]) (Grounds 1 and 2, amended notice of appeal); and/or

(2)    the IAA had considered the whole of a letter postdating the delegate’s decision from a Temple President in Sri Lanka, including that the author had “very recently” heard that the appellant was on a wanted list, in deciding to exclude the letter from consideration under s 473DD of the Act (FCC reasons at [35]) (Grounds 3 and 4, amended notice of appeal).

6    As to grounds 3 and 4 of the amended notice of appeal, for reasons explained below the scope of material which may be considered by the IAA on a fast track review is limited by Subdiv B and C of Division 3 of Part 7AA (comprising ss 473DB-473DF). The effect of these provisions is that the IAA must undertake a fast track review on the papers by reference to the material before the Minister (or the Minister’s delegate) subject only to an exception pursuant to which the IAA may consider new information under s 473DC where the criteria in s 473DD are met: Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 (AMA16) at [19] (Griffiths J) (with whom Dowsett J at [1] and Charlesworth J at [97] relevantly agreed).

7    For the reasons set out below, the appeal must be allowed on grounds 1 and 2 with costs.

2.    REASONS FOR THE GRANT OF LEAVE TO RAISE NEW GROUNDS 3 AND 4

8    At the hearing, the appellant’s counsel, Mr Karp, sought leave to raise grounds 3 and 4 of the amended notice of appeal. He explained that he had not appeared in the FCC and that he had not appreciated until preparing for the hearing on the previous day that grounds 3 and 4 raised a new ground not raised in the FCC. Specifically, ground 2 of the application for judicial review in the FCC challenged the IAA’s finding at [8] insofar as it related to a letter from a member of Parliament in Sri Lanka dated 2 November 2016, whereas grounds 3 and 4 of the amended notice of appeal challenge the finding at [8] insofar as it related to the letter from the Temple President dated 15 October 2016 (the Temple President’s letter).

9    Leave to raise grounds 3 and 4 was opposed by the Minister on the basis that the issue would be determined for the first time on appeal, depriving the Minister therefore of any right of appeal on the issue should those grounds be decided adversely to him. The Minister also contended that the new grounds lacked any real merit.

10    The principles on which the Court exercises its discretion as to whether leave should be granted to raise a new ground on appeal in the context of migration matters were explained by the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 as follows:

46. 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 (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].

47. 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.

48. 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.

See also Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 (Iyer) at [22]-[24] (the Court).

11    After considering these authorities, Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 (with whose reasons Conti J agreed) explained that:

165. It is no accident that the ‘practice’ spoken of in VUAX has often occurred in migration matters. Especially is this so in relation to cases concerning claims to refugee status. In the High Court and in this Court, judges have shown, as was recognized in Iyer, that they are acutely aware of what may be at stake if the claims made are genuine. There is no longer a general system of legal aid for poor applicants, as many of them in such cases are, who are independently assessed as having reasonably arguable cases. Often, unrepresented applicants who appear to be decent, genuine but impecunious people are reduced to floundering in complete incomprehension of the prevailing system of judicial review or the dangerous partial comprehension of those with a little knowledge of that system. Unsurprisingly, Full Courts have been slower in such cases to assert the primacy of finality of litigation considerations than in many cases where the risk of very serious personal harm is not involved. In saying this, I do not lose sight of the fact that, to degrees which may vary from place to place and time to time, there is a proportion of refugee claims which are simply legally unwarranted, and cynical attempts to subvert this country’s immigration system. Even the cynic, however, has a right to lawful treatment. In many areas of the law it is sometimes necessary, for the sake of the truly deserving, to accord concessions also to those ultimately shown to be undeserving.

166. Thus, relevant questions include:

1)     Do the new legal arguments have a reasonable prospect of success?

2)    Is there an acceptable explanation of why they were not raised below?

3)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)    What is at stake in the case for the appellant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)    If so, can it be justly and practicably cured?

8)    If not, where, in all the circumstances, do the interests of justice lie?

12    Applying these principles, I granted leave to the appellant to raise the new grounds having regard to the following considerations.

13    First, until the day before the hearing when the issue was identified by the appellant’s counsel, both of the parties’ counsel had been acting on the basis that the issue had been raised in the FCC. That was not surprising in circumstances where:

(1)    the IAA addressed both letters at [8] of its reasons and gave the same reasons for finding that it could not have regard to either letter under s 473DD of the Act;

(2)    the primary judge’s reasons for dismissing ground 2 at [34]-[36] did not identify the letter in question even though it was identified at [29] in the lengthy quotation of the grounds of judicial review; and

(3)    neither counsel on the appeal had appeared in the FCC, with counsel for the appellant in the FCC having sadly passed away.

14    Secondly, adopting a reasonably impressionistic view of grounds 3 and 4, it could not be said that they were without any merit.

15    Thirdly, I took into account the seriousness of the consequences for the appellant, as an asylum seeker, if the appeal is dismissed, assuming that his claims to fear harm are in fact genuine.

16    Fourthly, the Minister could not point to any specific prejudice.

17    Finally, both parties had addressed grounds 3 and 4 in their written submissions and had prepared to supplement those submissions orally at the hearing. The new grounds did not therefore take any party by surprise and the grant of leave would not result in any delay of the hearing or additional costs.

18    For these reasons the interests of justice were best served by the grant of leave. In these circumstances, leave was granted for the appellant to file and serve a further amended notice of appeal which essentially amended grounds 3 and 4 to reflect the fact that the issues raised by those grounds had not been raised before the primary judge.

3.    BACKGROUND

3.1    The criteria for the grant of the safe haven (temporary protection) visa

19    The protection visa for which the appellant applied is a class of temporary protection visa, as provided for by s 35A of the Act. As such, it was necessary among other things for the appellant to satisfy the criteria for a protection visa in either s 36(2)(a) (the refugee criterion) or subs 36(2)(aa) (the complementary protection criterion): see s 35A(6) of the Act.

20    Turning first to the refugee criterion, at the relevant time s 36(2)(a) of the Act provided that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations “because the person is a refugee”. A person is a “refugee” for the purposes of the Act if the person (relevantly) “is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country” (s 5H). In turn, s 5J(1) of the Act provided that:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

21    In the alternative, s 36(2)(aa) of the Act provides that it is a criterion for a protection visa that the applicant is a non-citizen in Australia “in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. The phrase “significant harm” is defined in s 36(2A) to mean arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

3.2    The appellant’s claims and the delegate’s decision

22    I have summarised the appellant’s claims in general terms to the extent possible in order to minimise the risk of disclosing details which may identify the appellant.

23    In his entry interview conducted with the assistance of an interpreter in the Tamil language on 13 February 2013, the appellant was asked why he left Sri Lanka (AB15). The appellant said that he was beaten and harassed because of his campaign (which was ultimately successful) to close down the army canteen within the local school. He also said that because he was a member of the Tamil United Liberation Front (TULF), the army focused more on him in relation to the canteen matter.

24    In his statement dated 17 May 2016 (appellant’s statement), the appellant set out a summary of his claims for protection. At the outset of his statement, the appellant explained that it was not exhaustive and that further information would be provided during any interview with the Department of Immigration (AB68 at [1]). Similarly a notation by RACS’ Legal Help for Refugees Clinic at the end of the statement explained that “This statement was prepared over the course of three hours by RACS’ Legal Help for Refugees Clinic. There may be errors or omissions in this statement based on the limited time available devoted to its preparation” (AB73). In this regard, it must be borne in mind that the interview with RACS was conducted with the assistance of an interpreter (as is apparent at AB74) which would have impacted significantly on the time which it would have taken for the appellant and the lawyer from RACS to communicate. The appellant also attached various documents in support of his claim to his statement.

25    In the appellant’s statement, he claimed that if returned to Sri Lanka, he would be seriously harmed by the Sri Lankan Army and the Criminal Investigation Department (CID) because of his ethnicity as a Tamil and his political opinion as a Tamil man with imputed links to the Liberation Tigers of Tamil Eeelam (LTTE) (appellant’s statement at [2]-[3]). The appellant set out various reasons as to why he said that he feared persecution by reason of his political opinion including that his wife had been killed by the army for suspected links to the LTTE. These reasons also included the appellant’s claim that he had campaigned for the closure of the canteen on the school premises run by the Sri Lankan army as a source of income because it was not safe for the schoolchildren, and particularly teenage girls, to be in such close proximity to the army (appellant’s statement at [28]-[34]). After receiving a letter from the army that the canteen would be closed in a couple of months, the appellant said that he was questioned by army officers as follows:

32. The army officers questioned me on why I was being so persistent with this request and whether I was involved with the LTTE. They repeatedly said they would not shut down the canteen and that they had defeated the LTTE in obtaining control over it. The army officers beat me and insisted that I must be affiliated with the LTTE as I am the only member of the society who is pushing to have the canteen shutdown. I told them that I want to do everything I can to make sure students are not impacted and that is the only reason I am being persistent with this. I repeatedly told them I had nothing to do with the LTTE but they did not believe me and kept beating and threatening me with death. I was held for over one hour and continuously beaten during that time.

33. I was requested to go to the army camp on approximately six separate occasions. On the last occasion, the beatings were more severe and I was terrified that the threats the officers were making were more than just mere threats. I was scared they were going to kill me.

(AB71-72)

26    He was subsequently advised by letter from a higher authority in the Sri Lankan army that the canteen would be closed. He said that the army officers of the relevant division “were very angry about this and continue to call me to their camp and beat me in retaliation for having their canteen shutdown. They saw me as the only reason for this having happened and accused me of orchestrating it as I am linked to the LTTE” (appellant’s statement at [34]). He said that he felt very unsafe, he could not escape the continued abuse, and he decided to flee Sri Lanka (appellant’s statement at [35]).

27    The delegate refused the appellant’s application for the protection visa on 14 October 2016 (AB112). In this regard the delegate accepted, among other things, that the appellant is an ethnic Tamil, that he was known to the Sri Lankan authorities, and that it was plausible that there was a level of harassment towards him (AB120-121). However, the delegate found that the chance of the appellant facing persecution by reason of his real or perceived links to the LTTE was nonetheless remote given the improved situation in the north of the country and its finding that the appellant does not have real or perceived links to the LTTE (AB 125).

3.3    The appellant’s submission to the IAA and attached letter

28    It was not in issue that the appellant is a “fast track applicant” as defined in subs 5(1)(a)(i)-(iii) of the Act and therefore that the delegate’s decision was subject to limited merits review by the IAA under the Fast Track Assessment Process (fast track review) in Part 7AA of the Act comprising ss 473BA-473JF (appellant’s submissions filed on 19 February 2020 (AS) at [5]).

29    Following notification that the delegate’s decision was referred to the IAA on 20 October 2016 pursuant to s 473CA of the Act (AB129), the appellant’s migration agent provided submissions and supporting documents said to constitute “new information” for the purposes of s 473DD (AB146). Those documents included a letter dated 15 October 2016 from the President of a Hindu Temple (AB149), being the Temple President’s letter referred to in grounds 3 and 4 of the amended notice of appeal. The terms of that letter are relevantly set out at [70] below. In essence, the author contended that he had very recent and reliable information that the appellant was on a list of wanted persons.

30    In addition, the appellant’s IAA submission sought to rely upon “new information” allegedly conveyed by the appellant’s son to the appellant’s sister that:

… some unknown persons came looking for the applicant and they enquired about the whereabouts of the applicant. At that time, she was at the University. The applicant’s daughter … feared for her life and made a complaint to [the authorities] on 10 October 2016.

(AB151).

3.4    The IAA’s decision

31    As earlier explained, the IAA notified the appellant of its decision on 1 December 2016 to affirm the delegate’s decision and gave reasons for its decision (AB160).

32    First, the IAA summarised the appellant’s claims at the commencement of its reasons, namely “that he has been imputed with a Liberation Tigers of Tamil Eeelam (LTTE) profile and will be harmed by the Sri Lankan authorities” (IAA reasons at [1]).

33    Secondly, the IAA referred to the appellant’s submission dated 17 November 2016 and correctly explained that:

4. … The IAA must not consider any new information from an applicant unless satisfied there are exceptional circumstances to justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims.

34    However, the IAA relevantly found that the letter of support from the Temple President contained information relating to past events and there was no information about why the appellant could not have provided the letter earlier (at [8]).

35    The IAA then turned to address the appellant’s claims referring at [10] to the matters relied upon by the appellant as the basis on which he said that he was suspected of being an LTTE supporter, including that:

•    In 2011/2012, he [served on the school council] and advocated for the closure of a canteen operated by the army on school premises. This was a source of conflict with the local army. The army visited him at home and he was required to report to them on six occasions. He was physically assaulted and threatened and accused of being an LTTE supporter.

…

•    The applicant has left Sri Lanka illegally and claimed asylum. He fears harm from the authorities on return. He fears he may be imprisoned and tortured. He is aware of reports of people dying after being injected with toxic substances by the authorities. His fear relates to all of Sri Lanka as he cannot relocate as he cannot speak Sinhala.

(AB164)

36    With respect to the appellant’s claims to fear persecution by reason of real or imputed support for the LTTE, the IAA at [13]-[14] accepted among other things that:

(1)    having come from an LTTE controlled area into a government controlled area in 2000, he was investigated by the CID and required to report monthly;

(2)    it was plausible that the appellant was assaulted by the CID on regular occasions;

(3)    this experience could have raised a subjective fear for the appellant that he may experience similar harm;

(4)    the appellant and his family would have been subject to scrutiny by the army, having fled the onset of fighting between the LTTE and government forces in early 2009 and travelled into government held territory; and

(5)    the appellant’s wife was killed in the last months of the Civil War.

37    However, the IAA found that it was not satisfied that the appellant’s wife was targeted by the army because she was suspected of being linked to the LTTE. Rather, it considered that her tragic death was one of many civilian casualties of the Civil War (at [14]). It also found that that the security situation in the north and east of Sri Lanka has significantly improved since the end of the conflict, the monitoring and harassment of Tamils has decreased, and the election of the Sirisena Government in 2015 has led to greater political cooperation and constructive engagement with the Tamil political parties (at [17]; see also at [13]). Furthermore, the IAA found that:

18. … noting that I have found that he did not have a profile as an LTTE member, or as the family member of an LTTE supporter, and the changed circumstances in the security situation I have considerable doubt that the applicant, and his family after his departure, would have been subject to ongoing attention by the CID.

38    At [20] of its reasons, the IAA also rejected claims that the CID had been visiting the appellant’s family asking about him since his departure from Sri Lanka, finding that the claims were advanced in an attempt to enhance his protection claims. The IAA was not satisfied that the appellant had a profile that would attract the CID’s attention on an ongoing basis after his departure from Sri Lanka.

39    After finding that due to improvements in the security situation there was no real chance that the appellant would experience serious harm on return by reason of his religion (at [22]), the IAA found at [23] that:

I have considered the applicant’s claim that he has been imputed with an LTTE profile on the basis of his wife, his Tamil ethnicity, being from a former LTTE controlled area, … his advocacy over the closure of the canteen, or his activities with the temple. I am not satisfied that the applicant has been imputed with an LTTE profile and I find that his fear of serious harm on return to Sri Lanka on this basis is not well-founded.

40    The IAA also rejected the appellant’s claims to fear harm on the basis that he would be considered by the authorities to be a failed asylum seeker. The IAA concluded that the appellant did not satisfy the refugee criterion in s 36(2)(a) of the Act (at [35]).

41    Finally, given its factual findings in the context of considering the refugee criterion, the IAA was also not satisfied that the appellant met the complementary protection criterion in s 36(2)(aa) (at [36]-[41]). In particular, at [38] the IAA repeated its finding that the appellant did not face a real chance of serious harm by reason of any interest in him from the authorities resulting relevantly from his advocacy over the closure of the canteen and was therefore satisfied that there was no real risk of significant harm to the appellant on this ground.

3.5    The FCC’s decision

42    While the application for judicial review in the FCC raised seven grounds of review, grounds 4.1, 6 and 7 were abandoned in the FCC (FCC decision at [29]-[30]). The primary judge dismissed the remaining grounds. The appeal challenges the primary judge’s findings for rejecting grounds 1 and 2 only. I consider the FCC’s reasons for so holding in the context of resolving the grounds of appeal.

4.    CONSIDERATION

4.1    Did the IAA fail to engage in an active intellectual way with a claim or integer of a claim (Grounds 1 and 2)?

4.1.1    The issues

43    Grounds 1 and 2 focus upon alleged errors in the IAA’s findings at [23] which is quoted earlier at [39] above. This paragraph might be described as a “rolled up conclusion” for rejecting the various factual bases on which the appellant claimed that he was imputed with an LTTE profile including by reason of “his advocacy over the closure of the canteen”. The IAA had earlier set out in more detail the appellant’s claims of being accused of supporting the LTTE as a result of his advocacy for the closure of the army canteen at [10] (quoted at [35] above).

44    Specifically, the appellant alleges that the primary judge erred in holding that:

(1)    there was no need for the IAA to engage in further analysis of the appellant’s claim to fear harm by reason of his advocacy to close the army canteen because the IAA correctly identified all of the integers of the appellant’s claim to fear persecution on this ground; and

(2)    the IAA’s finding at [23] of its decision was “dispositive” of the appellant’s claim to fear persecution because of his campaigning to close down the army canteen.

4.1.2    The primary judge wrongly held that mere identification of the integers of a claim was sufficient

45    As to the first contention, the primary judge held at [32] that:

It is apparent from the Authority’s reasons that the Authority identified the whole of the integers of this claim in its summary of the applicant’s claims. Given the correct identification of the integers, there was no need for the Authority to engage in further analysis.

(emphasis added)

46    The Minister rightly conceded that the mere identification of an integer of a claim without more would ordinarily amount to a constructive failure by the IAA to complete the exercise of its jurisdiction and that the primary judge therefore erred in holding otherwise at [32]. To this extent therefore grounds 1 and 2 must be upheld. However, the Minister submitted that having correctly identified the appellant’s claim at [10] of its reasons, the IAA then made findings of greater generality which were dispositive of that claim at [23], contrary to the appellant’s second contention (Respondent’s Submissions (RS) at [18]-[19]).

4.1.3    The primary judge’s finding that the IAA’s decision at [23] disposed of the appellant’s claim in any event

4.1.3.1    The nature of the challenge to this aspect of the FCC decision

47    Turning then to the second contention, the primary judge held at [33] that:

The finding in paragraph 23 [of the IAA’s decision] is a dispositive finding which was open to the Authority. In making the adverse finding in paragraph 23, the Authority’s reasons are not ones in respect of which it could be said that there is a failure to consider a relevant consideration or a failure to consider a claim or integer of the applicant’s claim. No jurisdictional error is made out by ground 1.

48    In referring to a “dispositive finding” in this passage, I understand the primary judge to mean that the IAA’s finding at [23] was sufficient to dispose of the claim that the appellant feared persecution or significant harm “from his role” on the school council as the primary judge described the claim at [31] of his reasons. The appellant confirmed at the hearing that this accorded also with his understanding of the passage.

49    In elaborating upon Grounds 1 and 2 of the amended notice of appeal, the appellant submitted that:

24. The appellant thus claimed that the source of the army’s antagonism towards him was his advocacy, and his partial success, in having the canteen close down. It was that that precipitated the accusations that he was affiliated with the LTTE. So even if the appellant had not been imputed with an LTTE profile as found by the IAA at AB 168 [23], the claimed source of the antagonism - the opposition to the army- remained. Appeal Book 168 [23] said nothing about whether the IAA accepted the claims about being harassed and beaten for opposing the army. Thus despite the IAA having briefly mentioned the claim at AB 164 and despite the dismissal of the claim that he had been imputed with an LTTE profile, the actual claim based on a fear of persecution because of opposition to the army was not addressed. That failure resulted in the IAA decision being affected by jurisdictional error…

50    It follows, the appellant submitted, that the finding at [23] of the IAA’s reasons was not dispositive, contrary to the primary judge’s decision.

51    The appellant’s counsel explained the submission further as follows at the hearing:

The appellant said at both his entry interview and in his statement that he advocated to have the canteen shut down. He was taken into detention, beaten up and accused of being in the LTTE. Now, those matters are – there’s a combination of them. They’re combined. But the genesis of his problem was that he was an advocate for the closing down of the canteen. There was no finding as to whether and to what extent – whether he did make that – whether that claim was accepted or not. There was no finding as to the extent to which he was beaten up. And there was no finding and no consideration of whether he had a well-founded fear of persecution because of his advocacy.

HER HONOUR: His advocacy per se.

MR KARP: Per se.

52    As such and as the appellant’s counsel confirmed during the hearing, the appellant’s challenge was not directed to the absence of any reasons for the IAA’s conclusion at [23] for rejecting his claim that he was imputed with an LTTE profile by reason of his advocacy over the closure of the canteen per se.

53    It follows that while the appellant pleaded that the IAA failed to engage intellectually with an alleged claim to fear harm by reason of advocating for the army canteen to close, the first issue which must be considered is whether that claim was in fact made by the appellant. The Minister contends that no such claim was made and that the appellant’s claim to fear harm as a result of his campaign for the canteen’s closure was made only as an integer of the claim to fear harm by reason of imputed LTTE sympathies.

4.1.3.2    Did the appellant claim to fear harm by reason of his advocacy for closure of the army canteen on the school premises?

54    It was not in issue that where a decision-maker fails to make a finding on a “substantial, clearly articulated argument relying upon established facts”, that failure can amount to a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 214 CLR 496 at [24] (Gummow and Callinan JJ); NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55] (Black CJ, French and Selway JJ). The relevant principles were recently summarised by me in CTY15 v Minister for Immigration and Border Protection [2019] FCA 197; 163 ALD 590 as follows:

48. … it is well established that a decision-maker is required to correctly construe and consider claims (and their component integers) made by an applicant or apparent on the material before the decision-maker: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov) at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])). As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 (Htun) at [42]:

To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.

49    A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason: Dranichnikov at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “is apparent on the face of the material before the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at 19 [58] (the Court). As Allsop J (as his Honour then was) explained in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK) at [15] (affirmed on appeal in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124):

Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

(emphasis added)

See also Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 (SZRMA) at 300 [70] (the Court); DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56 at [6]-[9] (Siopis and Griffiths JJ), [50] (Logan J); DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177 at [19]-[22] (the Court).

55    The Minister submitted that applying these principles, the appellant did not claim to fear harm based upon his advocacy for the closure of the army canteen.

56    I disagree. In my view, the appellant did put a substantial, clearly articulated argument to fear harm based upon his campaign for the closure of the army canteen at the school. This is clear from the appellant’s entry interview where, when asked why he left Sri Lanka, the appellant responded:

We cannot live there, always problems from CID. The CID asked me to come and sign regularly and also come and enquire me many times. I was the secretary of the local school association (parents and teachers association). The school had a shop/canteen and we wanted to run that and got permission. Earlier the shop was run by the LTTE. Then they came after me, how come you got it for you again, you must be working with them. They do not like people to help the community, and they harassed me for this reason.

They asked me to come to the camp, they beat me up. This shop was taken over by the Army and they use it as their Army canteen and using it as a bar. We complained and got it back for school use. They beat me, they harassed me. This happened 2012.… I was the secretary during this period. The shop was taken over in … 2011. Then I took over the shop administration in 2012. Our association complained that the shop belonged to the school and was run by army. So we took it back, but they were harassing the officials, such as me.

We want our children to study, we did not want the liquor shop, but they are angry. Our stand was that inside the school compound you cannot run a liquor shop and your presence is not desirable, and they treat me roughly and force me to admit crimes I never committed. They say you have to give back the shop or we will intensify our action. Then they threaten everybody and took back the shop. Then they made a way from outside they could go into the shop, and they forcibly took it back. We were unhappy and when we protested, they threatened us and I got scared. Even now they are going to my children and parents, and asking where is he. …

(AB15)

57    Furthermore, while the appellant’s claims as expressed in his statement dated 17 May 2016, link his advocacy against the army canteen to his claim to fear harm by reason of imputed LTTE sympathies, that statement explained that it was not exhaustive of the appellant’s claims and was prepared in a limited period of time: see above at [24].

4.1.3.3    Did the IAA consider the claim that the appellant feared harm as a result of his campaign for closure of the school campaign?

58    The question is then whether the claim that the appellant feared harm by reason of his campaign to close the army canteen was considered by the IAA.

59    The Minister submitted that:

…The Authority at AB 171 [38] found that there was no real chance or real risk of serious or significant harm to the appellant because of his advocacy over the closure of the canteen. It is apparent that this is a finding of generality which disposes of the appellant’s claim to fear harm by reason of his advocacy, whether because this would give rise to an imputed LTTE profile (which was the appellant’s claim) or more broadly.

(RS at [25])

60    In this regard, the Minister relied upon the Full Court’s decision in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 where it held that:

[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

(emphasis added)

61    In my view, with respect, this is not a case where it can be said that the IAA’s findings on the particular matter in issue are subsumed into findings of greater generality. It is apparent that at [23], at its highest the IAA “considered [only] the applicant’s claim that he has been imputed with an LTTE profile” on the various grounds put forward by the appellant including “his advocacy over the closure of the canteen”. It did not at that point or elsewhere consider whether he faced a risk of harm by reason of his advocacy for closure of the army canteen as a standalone claim.

62    In this regard, the IAA’s finding at [38] “that there is not a real chance that the applicant faces serious harm because of” (among other things) “his advocacy over the closure of the canteen” is expressly cross-referenced to the IAA’s earlier findings (“as set out above”), that is, its findings on the claim to fear harm by reason of imputed political opinion. As such, the finding at [38] cannot be read as a separate consideration by the IAA of the appellant’s independent claim to fear serious or significant harm by reason of his advocacy concerning the canteen.

63    In this regard, I accept the Minister’s submission that it is appropriate to infer that the IAA accepted at [23] and [38] that, as a matter of fact, the appellant had advocated for the closure of the canteen. However, the lack of any reasons (as opposed to mere conclusory statements) addressing this claim has left it entirely unclear which aspects of this factual claim were accepted by the IAA. For example, did the IAA accept that as a result of his advocacy on this issue, the appellant was detained and physically assaulted by members of the army? If so, how does that bear upon the risk in the future that he may suffer serious or significant harm if returned? Alternatively, if the IAA did not accept these aspects of the claim, why not? The appellant and the Court are left entirely in the dark as to such matters. As such, the absence of any reasoning on the issue reinforces my finding that the IAA has failed “to engage in an active intellectual process” in assessing the independent claim to fear harm based on the appellant’s canteen campaign, if indeed the IAA even appreciated that the claim was made at all (Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [46] (the Court)). Indeed, had the point been argued, the absence of any reasoning suggests that there would have been considerable force in the proposition that the IAA had failed to engage with the merits of the appellant’s claim to fear harm by reason of being imputed with LTTE sympathies as a result of his advocacy for closure of the canteen (ibid).

64    It follows that the primary judge ought to have held that the IAA constructively failed to exercise its jurisdiction and the appeal must be allowed on this ground.

4.2    Did the IAA err in determining whether the letter from the Temple President was “new information” (Grounds 3 and 4)?

4.2.1    Circumstances in which the IAA may consider “new information”

65    It is strictly unnecessary to consider grounds 3 and 4 in view of my conclusion on the first two grounds. Nonetheless, the issues pertaining to grounds 3 and 4 were fully argued and it is helpful to explain why I would not have allowed the appeal on these grounds.

66    In the exercise of the fast track review function, subs 473FA(1) requires the IAA “to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).” When read together with s 473DA, the scope of material which may be considered by the IAA is limited by Subdiv C of Part 7AA Div 3. Specifically, s 473DA provides that Div 3 (together with ss 473GA and 473GB) “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.”

67    Section 473DC(1) in turn provides that:

Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

68    In this regard, “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b)”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (Plaintiff 174) at [24] (Gageler, Keane and Nettle JJ) (emphasis added).

69    However, as the Full Court held in BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 (BYA17) at [31], “the discretion to get new information under subs 473DC(1) must be read together with s 473DD which strictly circumscribes the circumstances in which the IAA may consider any new information.” Section 473DD provides that:

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.

70    It follows that, in order to consider new information, the IAA must be satisfied that the criterion in s 473DD(a) is met and either criteria in s 473DD(b)(i) or (ii): Plaintiff M174 at [27] and [30]-[31] (Gageler, Keane and Nettle JJ). The “primary rule” is, therefore, that the IAA conducts the fast track review on the papers by reference to the material before the Minister or Minister’s delegate: Plaintiff M174 at [22]; AMA16 at [19] (Griffiths J) (with whom Dowsett J at [1] and Charlesworth J at [97] relevantly agreed); BYA17 at [33] (the Court).

4.2.2    Grounds 3 and 4 must be dismissed

71    It will be recalled that grounds 3 and 4 of the amended notice of appeal contend that the FCC erred at [34]-[36] in finding that the Authority gave genuine and realistic consideration to whether the letter dated 15 October 2016 from the Temple President met the requirements of s 473DD(a) and (b)(i) or (ii) of the Act.

72    The Temple President’s letter referred to the appellant having been a member of the Board of Trustees for the Temple and to the author’s belief that the appellant had made regular visits to the local army camp:

… where he had gained some sort of enmity with the ARMY, and was subjected to intimation [sic] and threat, by the ARMY. In the course of time, he had life threat by the army. He was summoned to the camp, for interrogation. Fearing for the worse to come he fled the Country, seeking life security.

Very recently, I, had reliable information to say thet, he is one among the lists of persons wanted.

(AB149) (emphasis added) (errors in the original)

73    The accompanying submission (appellant’s IAA submission) quoted these passages from the letter and then submitted that:

The Temple President’s letter is dated 15/10/2016, and on that basis, could not have been provided to the delegate. We are instructed that the [safe haven visa] interview was conducted on 6/10/2016. We respectfully urge the presiding reviewer to take this matter into consideration. We state that this is an exceptional circumstance especially when a person’s life is at risk. Had this information been known by the delegate, it may have affected the consideration of the referred applicant’s claims. We respectfully request the presiding reviewer to consider this new information as set out in section 473DD of the Migration Act. The applicant in this matter fears to return to Sri Lanka, due to the continued interest demonstrated by the Sri Lankan authorities. On the new evidence put before the presiding reviewer we submit that the applicant faces a real chance of persecution if return to Sri Lanka and as such has a well founded fear.

(at AB151)

74    In its reasons at [8], the IAA referred among other documents to the letter of support from the Temple President, stating (accurately) that the letter outlines “the applicant’s his [sic] role with the temple and his dealings with the army and that his name is on the list of wanted persons…”. The IAA then found:

8. … I note the representative’s contention that these documents postdate the delegate’s decision and on that basis they could not have been provided to the Minister. However, the information contained in each letter relates to events that occurred in the past and there is no information before me that indicates the applicant could not have obtained these letters earlier and provided them to the Minister. I am not satisfied that there are exceptional circumstances that justify the IAA having regard to the information.

(AB163)

75    The primary judge held at [35] that no error was disclosed in the IAA’s consideration of s 473DD as follows:

35. The Authority in its reasons identified that, although the documents post-dated the delegate’s decision, the information in the documents related to events which occurred in the past. In these circumstances, the Authority took into account that there was no information to indicate the applicant could not have obtained these letters earlier and provided them to the Minister. Those were logical and rational reasons which reflect a real and genuine consideration of the letter for the purposes of s 473DD of the Act and whether the requirements were met. The Authority referred to the whole of the limbs of s 473DD of the Act in its reasons. There is no substance in the contention that the Authority adopted an erroneously narrow meaning of “exceptional circumstances” or otherwise misconstrued the requirements of s 473DD of the Act. Nor is there any basis to find that the Authority misconstrued or misconceived the substance of the letter that was provided.

36. The Court does not accept that the Authority was required to engage in further analysis of the new information. On the face of the Authority’s reasons, there was real and genuine consideration given to the requirements of s 473DD of the Act in respect of the letter. The Court does not accept that the Authority failed to carry out the proper review or misapplied s 473DD of the Act in respect of the letter. No jurisdictional error is made out by ground 2.

76    The appellant submits that the IAA relied on an incomplete and inaccurate reading of the Temple President’s letter in finding that it related to events in the past and that there was no information before it as to why they could not have been obtained earlier, given that the information that the appellant was on a wanted list was stated to have been obtained only “very recently” (AS at [27]). The appellant submits on this basis that:

28. The fact that a vital part of the letter was overlooked leads to a conclusion that it was not considered, in the sense of having an active intellectual process directed to it (Carrascalao Minister for Immigration (2017) 252 FCR 352 at [46]; Tickner v Chapman (1995) 57 FCR 451, 462, 495). Had the letter… been considered in the relevant sense the IAA may have found that it met the requirements of s. 473DD which could realistically have affected its decision.

29. The Federal Circuit Court was therefore incorrect at AB 203 [36] in finding that the IAA engaged in real and genuine consideration of the requirements of s. 473DD in respect of the letter.

77    The appellant also submitted at the hearing that it was necessary for the IAA to determine whether s 473DD(b)(i) or (ii) were satisfied in order for it to be able to determine whether exceptional circumstances existed for the purposes of s 473DD(a) which the IAA had failed to do. In this regard while strictly speaking, the IAA is not required to consider whether s 473DD(b) is satisfied before considering s 473DD(a), nonetheless a failure to consider the matters relevant to determining whether the criteria in 473DD(b) are met in the context of considering whether exceptional circumstances exist may lead the IAA into error: see Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [102]-[106] (the Court) (approving White J’s analysis in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221); see also the discussion of the relevant authorities in EPT17 v Minister for Immigration [2019] FCA 570 at [54]-[57] (Perry J).

78    In my view, the appellant has failed to establish error on the part of the FCC on grounds 3 and 4.

79    First, as both parties accepted, it is apparent that the IAA accepted that the letter met the definition of “new information” being information that was not before the Minister’s delegate.

80    Secondly, the Minister correctly submitted that, in noting the representative’s contention that both letters post-dated the delegate’s decision and could not therefore have been provided to the Minister, the IAA has clearly accepted that the letters met the criterion in s 473DD(b)(i). That being so, it is not the case that the IAA fell into the error of purporting to determine whether exceptional circumstances existed for the purposes of s 473DD(a) in the absence of a consideration of the matters relevant to the criteria in s 473DD(b): see above at [76].

81    Thirdly, as the Temple President’s letter said that the author had the information “very recently”, the information set out the letter must have been obtained in the past, albeit in the recent or very recent past. Furthermore, while the information was said to have been obtained only “very recently”, there is no suggestion that it was obtained by the author only after the delegate’s decision was given.

82    Fourthly, it is implicit in the IAA’s decision that it did not accept that the appellant had necessarily been unaware of the allegedly “reliable information” that he was on a wanted list before he received the Temple President’s letter because of the weight which the IAA gave to the appellant’s failure to explain why he had not obtained the letters earlier (and therefore before the decision by the Minister’s delegate). In this regard, the submission dated 17 November 2016 went no higher than to state that the Temple President’s letter post-dated the delegate’s decision. As the appellant’s counsel accepted at the hearing, the submission did not submit or attach evidence that the information contained in the letter had been communicated to the appellant for the first time only via the letter or at any particular point in time. It is in that context, no doubt, that the IAA gave weight to the absence of evidence before it to explain why the letter could not have been obtained earlier from the Temple President and provided to the delegate. That omission in the evidence before the IAA provides, as the primary judge held, a rational and logical basis for finding that the appellant failed to satisfy the IAA that there were “exceptional circumstances” justifying the IAA having regard to the information so as to satisfy s 473DD(a).

83    Finally, as the IAA must be satisfied that the criterion in s 473DD(a), as well as those in s 473DD(b)(i) or (ii), are met before its power to consider the new information is enlivened, it follows that the IAA was precluded from considering the new information by operation of s 473DD (Plaintiff M174 at [30]-[31]). The finding in other words that the criterion in s 473DD(a) was not met was dispositive of the issue.

5.    CONCLUSION

84    For the reasons set out above, the appeal must be allowed and the matter remitted to the IAA for redetermination according to law. The appellant should also be awarded his costs of the appeal. Furthermore, given that he has succeeded on grounds 1 and 2 (as opposed to the new grounds 3 and 4), the order for costs in the FCC should be set aside and the respondent is to pay the appellant’s costs in the FCC.

Associate:

Dated:    13 March 2020