FEDERAL COURT OF AUSTRALIA

EDU16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 465

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s interlocutory application dated 11 March 2020 be refused.

2.    The appellant pay the first respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

Introduction

1    On 24 February 2020, the court made an order under r 36.75 of the Federal Court Rules 2011 (Cth) (hereafter, the “FCR”) dismissing an appeal brought by the appellant from orders of the Federal Circuit Court of Australia (hereafter, the “FCCA”). The appeal was scheduled for hearing at 10:30am on that day. The appellant was not present at that time, despite having notice of the hearing. At the calling of the appeal (which, on account of the appellant’s failure to present within the court room, was delayed until approximately 10:45am), there remained no appearance by the appellant. The representative of the first respondent (hereafter, the “Minister”) subsequently made an oral application for the appeal to be dismissed pursuant to FCR r 36.75(1)(a)(i), which I granted (I will refer to that order hereafter as the “Default Judgment”).

2    By an interlocutory application dated 11 March 2020, the appellant seeks to have the Default Judgment set aside and his appeal reinstated (hereafter, the “Reinstatement Application”). In support of that application, he affirmed an affidavit on 11 March 2020, which stated (errors original):

1.     I am the Review Applicant in this matter and the Applicant making this application.

2.     My matter was listed for hearing on 24 February 2020 at the Federal Circuit Court at 10:30 AM, I cleared security and by 10:00 AM was inside the building. Being unsure of where I should go, I inquired from reception next to the security counter. The officer at the counter was unable to assist me, and asked me to check with the reception on that floor. I obtained a ticket and waited to be called.

3.     When I was called, it was past 10:30 AM. The reception said that it was about family law cases and I should go to the 7th floor registry for any help. I then went to the 7th floor registry. They advised the hearing room where my case was listed. When I went there, nobody was in the room.

4.     I went back to the 7th floor and spoke to the registry. They told me the case was dismissed since I did not appear and advised that an application should be made. She gave me the forms to make the application.

5.     I say that I did not ignore the court date, arriving in time. But out of confusions about where to go to report for the hearing, I was not in the courtroom where it was heard at that time.

3    The court’s power to grant the relief that the appellant seeks is beyond doubt: Federal Court of Australia Act 1976 (Cth), s 25(2B)(bc). Its exercise is discretionary. That discretion must be exercised judicially. Doing so requires that regard be had at least to:

(1)    the nature and sufficiency of any explanation that the appellant can offer for his non-attendance at the hearing of 24 February 2020; and

(2)    whether the grounds of the appeal that he hopes to have reinstated appear at least reasonably arguable on their merits,

(see: FJA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 38, [6] (O’Bryan J); AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110, [29] (Tracey J)).

4    I turn now to consider those two factors.

Explanation for failure to attend the hearing

5    The appellant’s explanation for his non-attendance at the hearing of 24 February is apparent from his affidavit (above, [2]). He elaborated upon that explanation at the hearing of the Reinstatement Application, in part in contradiction of what appears in his affidavit. Before me, he indicated that it was not until 10:20am on 24 February 2020 than he passed through the court’s security entrance (not 10:00am, as his affidavit suggests). He was then directed to a reception or registry area, albeit one that he eventually learnt was not affiliated with this court. By the time that he had worked out where he was meant to be, the Default Judgment had been pronounced.

6    The appellant’s explanation is, in many respects, unconvincing and inadequate. From the moment that the appellant cleared the security checkpoint at the entrance to the building, it should have taken no more than a few minutes for him to make his way to the courtroom in which his appeal was to be heard. Immediately upon passing through that checkpoint, he would have been confronted by large display screens that identify where, within the building, each of the matters to be heard by the court (and, indeed, by other Commonwealth courts) is to take place. Although I appreciate that the court environment might be foreign and, occasionally, intimidating to many, it is not a difficult thing to follow from those screens where it is that one is meant to be.

7    Further and more significantly, it was the appellant’s responsibility—as he properly conceded—to ensure that he was in the right place by the right time. He either did not leave himself enough time to find out where it was that he should go; or did not act with appropriate haste to ensure that he got there in time.

8    That said, I accept that the appellant was confused and felt compelled to seek the assistance to which his affidavit refers. It is with some difficulty that I accept that he was unable to obtain that assistance in a manner timely enough to enable his appearance at the hearing. On the appellant’s affidavit evidence, he arrived nearly a full half hour prior to the scheduled start time of the hearing, and approximately 45 minutes before it, in fact, began. That he was unable to find out from anybody in the building within such a large amount of time where it was that he was supposed to be is, to say the least, surprising. Even assuming that it was not until 10:20am that he arrived inside the building, that still left him with nearly 25 minutes before the hearing actually began. Again, it is surprising to think that any litigant—even one for whom English is not his primary language—should require as long as the appellant seems to have required in order to achieve what the vast majority of litigants (including those that labour under equivalent difficulties) are able to achieve.

9    As a self-represented litigant who is reliant upon the assistance of an interpreter, I consider that the appellant should be given the benefit of whatever doubt might exist as to the reason to which he attributes his non-attendance at the 24 February hearing. I accept that the explanation that he has given should incline the court toward granting the relief that he now seeks. Were it not for my consideration of the apparent merits of his substantive appeal, I may well have acted upon that inclination. For the reasons addressed below, however, the appellant’s explanation alone is not sufficient to warrant an exercise of the court’s discretion to set aside the Default Judgment.

Prospects of the substantive appeal’s success

10    Having invited the appellant to elaborate upon them (at least at an interlocutory level), I am satisfied that none of the grounds that the appellant hopes to agitate if the Default Judgment is set aside has sufficient prospects of succeeding. It is not necessary that I should reach that state of satisfaction after conducting a detailed analysis of the proposed grounds—a “reasonably impressionistic” assessment is sufficient: DKX17 v Federal Circuit Court of Australia and Others (2019) 268 FCR 64, 81-82 [95] (Reeves, Rangiah and Bromwich JJ); MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, 486 [38] (Tracey, Perry and Charlesworth JJ). That notwithstanding, the submissions that he advanced in support of his Reinstatement Application leave me with no doubt that the appeal grounds that the appellant hopes to pursue all lack a degree of merit sufficient to warrant the relief now sought.

11    The appellant’s Reinstatement Application should (and will) be refused on that basis.

12    In order to understand why I have formed the view expressed above, it is necessary to say something about the nature of the substantive appeal. The following sections of my reasons are directed to that end.

Background

13    The appellant is a Sri Lankan national and a Hindu Tamil who hails from Vavuniya, in Sri Lanka’s Northern Province. On 14 October 2012, he arrived at Cocos Island as an unauthorised maritime arrival, within the meaning attributed to that phrase by the Migration Act 1958 (Cth) (hereafter, the “Act”). On 2 February 2016, he applied under the Act for a protection visa (hereafter, the “Visa Application”). On 19 August 2016, a delegate of the Minister dismissed the Visa Application. On 22 August 2016, that decision (hereafter, the “Delegate’s Decision”) was referred for review to the second respondent (hereafter, the “IAA”). On 5 December 2016, the IAA affirmed the Delegate’s Decision (that affirmation is referred to, hereafter, as the “IAA Decision”).

14    On 29 December 2016, the appellant applied to the FCCA for prerogative relief directed to the IAA Decision (hereafter, the “Judicial Review Application”). On 3 September 2019, the FCCA dismissed the Judicial Review Application: EDU16 v Minister for Immigration & Anor [2019] FCCA 2449 (Judge Obradovic; hereafter, the “FCCA Judgment”).

15    By a notice of appeal lodged on 13 September 2019, the appellant sought to appeal against the FCCA Judgment.

The Visa Application

16    The appellant’s Visa Application proceeded upon the assertion that, if returned to Sri Lanka, he would be subjected to abduction or physical harm by the Liberation Tigers of Tamil Eelam (or “LTTE”), the Sri Lankan Army (“SLA”) or the Sri Lankan Criminal Investigation Department (“CID”). Those stated fears were said to have multiple sources, which it is appropriate to briefly explore.

17    Prior to leaving Sri Lanka, the appellant ran a successful grocery business with his uncle. In May 2012, he was abducted by persons unknown to him. His captors were armed but did not mistreat him physically. They were not wearing uniforms and spoke both Tamil and Sinhalese. They questioned him for a day before he was released, apparently after a “significant ransom” was paid. Not long after he was released, he fielded threatening phone calls—again from persons unknown to him—during which demands were made that he pay additional sums of money. Since leaving Sri Lanka, he claims that his family and neighbours have continued to be intimidated and questioned about his whereabouts.

18    Initially (which is to say at the time of his arrival in Australia and, later, before the delegate of the first respondent), the appellant indicated that he did not know who it was that had abducted him, nor who it was that had subsequently threatened him, his family and his neighbours. He consistently maintained that the people or groups behind those acts did not identify themselves.

19    At the point that his Visa Application came for consideration before the IAA, however, the appellant insisted that the SLA or the CID (or, perhaps, other Sri Lankan government authorities) were responsible for the intimidation of his family and neighbours. Those authorities, he posits, suspect him of having links to the LTTE.

20    The appellant claimed that, in August 2016, CID officers came to his family’s house. They took the appellant’s brother away for questioning. He (the brother) was interrogated and physically mistreated. Amongst other things, the CID officers inquired about the appellant, and indicated to his brother that he (the appellant) was suspected of having supplied weapons to the LTTE. The appellant also claimed that two shopkeepers with whom he had worked had been arrested on suspicion of receiving weapons from the appellant. One of them, the appellant claimed, had been killed by CID officers, whilst the other remained in custody.

21    The appellant also claimed that, if returned to Sri Lanka, he would be arrested in connection with the unlawful manner in which he left. He claimed that he would be detained by the authorities upon arrival and subjected to mistreatment.

22    The appellant claimed to satisfy the requirements provided for by ss 36(2)(a) and (aa) of the Act. As to the former, he maintained that, if returned to Sri Lanka, the SLA or the CID would subject him to physical mistreatment on account of (primarily) his suspected connections to the LTTE. It was largely the same mistreatment that formed the basis for his claim to complementary protection under s 36(2)(aa) of the Act.

Legislative provisions

23    At the material times, s 36(2) of the Act relevantly provided as follows:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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…

24    There is no question raised, for present purposes, about the jurisdiction of the IAA to review the Delegate’s Decision, nor of the FCCA to hear an application for prerogative relief directed at the IAA Decision. It is not necessary to set out the provisions of the Act that confer those jurisdictions.

25    Decisions that are referred to the IAA for review are, generally, speaking, reviewed on the basis of the information that was before the person who made the initial decision: the Act, s 473DB(1). Sections 473DC and 473DD of the Act provide for an exception to that general rule. Those provisions provide as follows:

473DC     Getting new information

(1)     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.

(2)     The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)     Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)     in writing; or

(b)     at an interview, whether conducted in person, by telephone or in any other way.

26    Sec 473DE of the Act assumes potential significance in this appeal. It provides as follows:

473DE Certain new information must be given to referred applicant

(1)     The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)     give to the referred applicant particulars of any new information, but only if the new information:

(i)     has been, or is to be, considered by the Authority under section 473DD; and

(ii)     would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)     explain to the referred applicant why the new information is relevant to the review; and

(c)     invite the referred applicant, orally or in writing, to give comments on the new information:

   (i)     in writing; or

(ii)     at an interview, whether conducted in person, by telephone or in any other way.

(2)     The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

 (3)     Subsection (1) does not apply to new information that:

(a)     is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

   (b)     is non-disclosable information; or

   (c)     is prescribed by regulation for the purposes of this paragraph.

Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

The IAA Decision

27    Before the IAA, the appellant sought to introduce new information

28    The written submissions that the first respondent advanced for the purposes of the present appeal (before it was dismissed) contain the following passages about the IAA Decision, which I gratefully adopt as a fair summary thereof (references omitted):

 5     On 5 December 2016, the IAA affirmed the [Delegate’s Decision] on review.

6     The IAA had regard to the material referred to it by the [Minister’s] Department under s 473CB of the Act. It also had regard to the IAA submission [of the appellant’s] and found that to the extent that the submission referred to information that was before the delegate at the time of primary decision, or contained legal submissions going towards the delegate decision, it was not new information and considered it.

7     In relation to [a letter of the Human Rights Commission of Sri Lanka (hereafter, the “HRC”), which was provided by the [appellant] to the IAA on 27 September 2016] and the IAA statement from the appellant referring to recent developments, given the recent nature of the developments the IAA was prepared to accept that the information could not have been provided to the delegate and that there were exceptional circumstances that justified considering the information (although noting that no submissions were made by the appellant in relation to s 473DD of the Act).

8     In relation to the country information reports referred to in the IAA submission that were not before the delegate, the IAA found that the reports pre-dated the [Delegate’s Decision] and so was not satisfied that the information could not have been provided to the Minister before the [Delegate’s Decision] was made; nor was it satisfied that it contained credible personal information. The IAA was not satisfied that there were exceptional circumstances to consider the country information reports.

9     In relation to the appellant’s request for a hearing set out in the IAA submission, the IAA was satisfied that the issues raised by the appellant were discussed at the interview and that the appellant’s submission engaged with any concerns the appellant had with the [Delegate’s Decision]. The IAA was therefore not satisfied that an interview was necessary.

10     The IAA accepted that the appellant ran a successful business with his uncle and fell into the particular social groups “wealthy Tamil businessmen in Sri Lanka; wealthy Tamil businessmen from Vavuniya; whole sale grocers in Sri Lanka; or Tamil traders from the north of Sri Lanka”.

11     The IAA found that there had been discrepancies in his evidence in relation to the claimed abduction, but it gave no weight to these minor discrepancies. However, the IAA had concerns in relation to the events following the abduction. It found the inconsistencies in the appellant’s evidence about his living arrangements following the abduction and/or whether his home was visited while he remained in Sri Lanka were significant and raised questions about what occurred after the abduction.

12     In relation to the three letters that the appellant provided to the delegate, the IAA found that these were not an independent corroboration of his claims but records of reports of his and his family’s claims as made to third party organisations. The IAA further found that they were incomplete accounts in that they omitted key aspects of the appellant’s claims. Although it could not discount that these letters were genuine because of their content, the IAA afforded them little weight.

13     In relation to the police report the appellant provided, the IAA found that it contained discrepancies, but accepted that the report was made and that it provided corroboration of the abduction.

14     The IAA noted that during the primary review before the delegate, the appellant had consistently claimed not to know the identity of the people targeting him, however in his submissions and statement to the IAA, the appellant definitively claimed that the SLA and CID were responsible for the continued visiting and questioning of his family. The IAA found that this shift in the evidence was significant and brought into question the reliability of these claims.

15     Although the IAA accepted that the CID and SLA detained and seriously mistreated persons suspected of involvement with the LTTE, it found that the appellant’s claim that a ransom was demanded was at odds with the country information of the treatment of persons suspected of involvement with the LTTE by the CID, the SLA or other Sri Lankan authorities. On the basis that: no one identified themselves during the abduction; no men wore uniforms; no formal investigation was undertaken; the appellant was not invited to attend the CID offices or SLA camps; and, the two phone calls received made no reference to involvement with the LTTE, the IAA found that the appellant’s abduction was not likely to have been related to any CID, SLA or other Sri Lankan authority as a part of an investigation or other security or government operation. The IAA found that the abduction was not related to any genuine suspicion of LTTE involvement, but was a criminal act directed at the appellant as a person who owned a successful business and was perceived as wealthy. The IAA found that the behaviour of those who abducted the appellant to be consistent with the activities of criminal gangs and former paramilitary groups. In relation to the paramilitary groups, with reference to country information, the IAA found that at the time the appellant claimed to be abducted in 2012, these groups had renounced their paramilitary activities but were reported to have engaged in human rights violations and criminal activities.

16     The IAA accepted that: the appellant was abducted in 2012; a large ransom was paid for his release; and that two further telephone threats were made. However, the IAA found that the threat to the appellant had ceased, given he was able to live at home for three months unhindered and he would not have been able to avoid interaction with this group altogether as he did if there was a real threat that he would be abducted again.

17     The IAA found it difficult to accept that if these unknown persons were the authorities they would not have attempted to contact or question the appellant in the intervening three and half months before he departed Sri Lanka and that they had visited his house after he left. The IAA found that if these persons were the abductors, no obvious demands were made for ransom. Alternatively, if these people were the authorities, that they never identified themselves or the reasons they needed to contact the appellant, prior to August 2016. The IAA had difficulty accepting that if these threats were genuine, the appellant’s family would not have sought the identity or intentions of these persons in the three or four years that they continued to visit his family after his departure.

18     In relation to the HRC letter, the IAA found that it provided no details of whether any investigation was undertaken by the HRC into the complaint that his brother had been detained by the CID on 12 August 2016 and provided no independent corroboration of the alleged events. The IAA found that it was difficult to accept that the CID would so readily volunteer information to the brother about their investigations into the appellant, given that in the previous four years they had not even identified themselves as investigating the appellant’s association with the LTTE. Although it could not discount the genuineness of the documents provided by the appellant, the IAA found that their value was outweighed by the other evidence before it.

19     As the IAA found no persons or authorities were interested in the appellant between 2012 and the middle of 2016, it found it implausible that the CID, SLA or any other authority would more recently approach his family about his whereabouts, or that they detained, questioned and threatened his brother.

20     The IAA accepted that the appellant was targeted for kidnapping, abduction, extortion and ransom in 2012, that his father was killed in 2009, and his uncle shot in 2006. However, it did not accept these killings had anything to do with the appellant’s personal circumstances.

21     The IAA did not accept that the appellant had any actual or imputed connection to the LTTE, whether through his business or for any other reason, and did not accept that he was targeted in 2012 for these reasons. Nor did the IAA accept that the Sri Lankan authorities (including the CID or SLA) or any other person had an interest in him if he returned to Sri Lanka. The IAA was satisfied that the appellant was targeted as either: a wealthy Tamil businessman in Sri Lanka; a wealthy Tamil businessman from Vavuniya; a wholesale grocer in Sri Lanka; or, a Tamil trader from the north of Sri Lanka.

22     The IAA accepted that if the appellant returned to Sri Lanka he would recommence his business or start a new business, and if he did not, he may continue to be seen as a wealthy Tamil or Tamil businessman. However, having regard to country information the IAA found that there were positive and concrete indicators that the Sri Lankan authorities had addressed the issues with a resulting fall in the incidence of abductions for ransom since the end of the conflict. Accordingly, it found that the chance of him facing serious harm in the future on this basis to be remote.

23     The IAA found that there was not a real chance that the appellant would face harm from a criminal gang, former paramilitary or any other person or group for reason of being a member of the particular social group of: a wealthy Tamil businessman in Sri Lanka; a wealthy Tamil businessman from Vavuniya; a wholesale grocer in Sri Lanka; Tamil traders from the north of Sri Lanka; or, any other iteration of these grounds. The IAA further found that there was no chance of him being targeted by any Sri Lankan authority on the basis of any actual or imputed or suspected connection to the LTTE.

24     The IAA found that beyond the kidnapping and extortion, the appellant had not claimed to have been harassed or mistreated by the SLA, the CID, paramilitaries, the Sri Lanka[n] authorities or any other groups for reasons related to his race, age, profile, residency in a former conflict are[a] in the north of Sri Lanka or any actual or imputed connection to the LTTE.

25     Although the IAA accepted that the appellant’s father and uncle were killed, it did not accept that there was any credible evidence that his family had been targeted for reasons associated with the LTTE or otherwise. It also did not accept there was any link between his father’s death, his uncle’s abduction and his own abduction. The IAA was satisfied that the appellant had no profile as a person connected to the LTTE or other separatist profile and neither did his family. Further the IAA did not accept that what occurred to the appellant’s friend on return to Sri Lanka, or to the shopkeepers, had any link to the appellant’s circumstances.

26     The IAA accepted that the appellant’s family was not “untouched” by the hardship faced by Tamils during the civil war period, however with reference to country information, and in the absence of a relevant LTTE profile, the IAA was not satisfied that the appellant faced a real chance of harm on account of any actual or imputed LTTE connection.

27     Although the IAA acknowledged that human rights abuses occurred in Sri Lanka it did not accept that appellant’s representative’s contention that there remained widespread systematic human rights abuses in Sri Lanka towards Tamils, such as the appellant. The IAA accepted that there was some societal discrimination against certain ethnic groups but noted that the appellant has not claimed or referred to having encountered discrimination in the past and was able to run a successful business for several years before leaving the country. Having regard to country information, the IAA found that potential for the appellant to face societal discrimination as a Tamil to be remote.

28     Considering all the claims before it, including in a “cumulative sense” the IAA was satisfied that the appellant would not face a real chance of serious harm for reason of his ethnicity, age, profile, and/or home area if he returned to Sri Lanka or any actual or imputed or suspected connection to the LTTE or other Tamil separatists.

29     With reference to country information, the IAA found that the appellant may be questioned as part of the airport screening process and that returnees with a low profile were not generally at risk of harm on return to Sri Lanka. The IAA found on the basis of his low profile, there was not a real chance that the appellant would be harmed or mistreated because he is a failed asylum seeker, a returnee or someone who left Sri Lanka illegally.

30     The IAA accepted that the appellant may be punished under the Immigrants and Emigrants Act (I & E Act) because of his illegal departure and that he may be fined. However, as the fine could be paid in instalments it did not accept that this would cause the appellant economic hardship or threaten his capacity to subsist. The IAA was satisfied that any fine imposed or bail requirement would not amount to serious harm. It accepted that he may be detained for several days awaiting an opportunity to appear before a Magistrate and that such detention may occur in a prison that does not meet international standards. However, it found that the poor prison conditions were due to economic reasons and not a result of any systematic or intentional conduct by the Sri Lanka[n] authorities. The IAA was also satisfied that any questioning and detention the appellant may experience would be relatively brief and would not constitute serious harm.

31     Considered cumulatively, the IAA was not satisfied that the harm the appellant may face on the basis of his illegal departure in terms of any questioning, fine or detention would constitute serious harm.

32     The IAA also found on an independent basis that the provision and penalties of the I&E Act were laws of general application, non-discriminatorily applied and therefore would not amount to persecution.

33     The IAA was satisfied that the process or penalty the appellant may face on return to Sri Lanka because of his illegal departure or as a failed asylum seeker would not constitute persecution for the purposes of the Act.

34     The IAA found that there was not a real chance of the appellant facing serious harm in the form of kidnapping, abduction, any form of extortion or harm, from the Sri Lankan authorities, any paramilitary group, criminal gangs, or any other group or person, for reasons associated with his status as a wealthy Tamil or business owner, or any related particular social group.

35     Considering the claims individually and cumulatively, the IAA was satisfied that the appellant would not face a real chance of serious harm on return to Sri Lanka on account of: any actual or imputed political opinion or connection to the LTTE; his age, ethnicity, profile as a young Tamil male from the North; or as a result of departing Sri Lanka illegally and seeking asylum in Australia. The IAA found that the appellant did not satisfy s 36(2)(a) of the Act.

36     The IAA accepted that the appellant may face a degree of societal discrimination or questioning on return to Sri Lanka. However, with reference to country information, it found that there was no suggestion that any discrimination or questioning and monitoring would amount to the death penalty, arbitrary deprivation of life or torture, and would not involve the intentional infliction of pain or suffering or extreme humiliation. The IAA accepted that Tamils may face societal discrimination, questioning or monitoring, but it was not satisfied that this amounted to significant harm.

37     The IAA noted that it had accepted that the appellant may be detained, questioned and fined on return to Sri Lanka on account of his illegal departure but did not accept that any brief detention, questioning, fine or other penalty amounted to significant harm under the Act. Further, if found that such penalties did not constitute the death penalty, arbitrary derivation of life or torture, or involve the intentional infliction of pain or suffering or extreme humiliation. The IAA found that while the conditions of prison were poor there was no intention to inflict pain or suffering or extreme humiliation and that such poor prison conditions did not amount to significant harm under the Act. The IAA found that any process or penalty the appellant may face would not constitute significant harm.

38     Relying on its anterior findings the IAA found that the appellant would not face a real risk of significant harm for reasons associated with: being a wealthy Tamil or business owner (or any related particular social group); on the basis of any actual or imputed political opinion or connection to the LTTE; his age, his ethnicity, profile as young Tamil male from the North; or, as a result of departing Sri Lanka illegally or seeking asylum in Australia. The IAA was not satisfied that the appellant satisfied s 36(2)(aa) of the Act.

The FCCA Judgment and the present appeal

29    By his Judicial Review Application, the appellant submitted that the IAA Decision was the product of jurisdictional error and, as such, should be set aside so that his Visa Application might be reviewed afresh (and according to law). The appellant advanced four grounds on that theme, namely (errors original):

1.     The Immigration Assessment Authority’s finding that the applicant was abducted and persecuted in 2012 due to his business and wealth and not due to his involvement or support for the LITE was so illogical and irrational reasoning which was not supported by evidence. ( Reference to Minister for Immigration and Citizenship –V- SZMDS {2010} HCA 16)

2.     The Immigration Assessment Authority did not assess that applicant’s claim cumulatively being a wealthy Tamil of perceived political opinion against the government of Sri Lanka due to his brother’s link with the LTTE.

3.     The Immigration Assessment Authority did not assess the Applicant’s integer claims of being a Young wealthy Tamil from the North of Sri Lanka with perceived LTTE political opinion.

4.     The Immigration Assessment Authority has not complied with section 473DD & 473 DE of the Migration Act 1958 when finding that there are no exceptional circumstances to justify considering new information.

30    By the present appeal, the appellant restates each of the four grounds upon which he alleged, before the FCCA, that the IAA Decision should be impugned as the product of jurisdictional error. It is tolerably clear that the appellant charges the FCCA with having erred by not accepting any of those grounds.

31    It is not necessary to set out in detail the conclusions that underpin the FCCA Judgment. As is set out above, the appellant’s contention is (or will be) that the FCCA erred by not accepting that the IAA Decision was attended by jurisdictional error. If the IAA Decision discloses any one or more of the errors that the appellant alleges, then it will follow that the FCCA erred by concluding otherwise. If it doesn’t, then the FCCA Judgment will have been correct. Either way, it is upon the IAA Decision that the court’s attention must focus.

Ground One: the IAA Decision was illogical or irrational

32    By the first of his four grounds, the appellant alleges that it was irrational or illogical (in a sense illustrative of jurisdictional error) for the IAA to have found that his abduction in 2012 was unrelated to any connection that he was suspected of having with the LTTE.

33    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ described (at 648 [131]) the circumstances in which irrationality or illogicality amounting to jurisdictional error might arise:

…the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

34    As the summary of the IAA Decision above makes clear, the IAA’s conclusion that the appellant’s abduction in May 2012 was unrelated to any suspicion that he was linked to the LTTE was extensively reasoned. That reasoning was not erected upon inherently illogical foundations; indeed, it hangs together plausibly without any want of rationality.

35    Invited to expand upon this ground before me, the appellant made clear that his central complaint is that the IAA did not accept the contention that he advanced before it (namely, that his abduction—and, more generally, the threats that await him if he is returned to Sri Lanka—reflect a mistaken belief amongst Sri Lankan officials that he is associated in some way with the LTTE). That complaint is well-understood; but it falls well short of what is required to establish that the IAA’s contrary conclusion was one that it lacked jurisdiction to draw.

36    I am not persuaded that the first of the appellant’s four grounds contains merit sufficient to warrant that the Default Judgment be set aside. On the contrary, it appears to be wholly without merit and I am satisfied that, were it to be agitated, it would very likely (indeed, almost certainly) fail.

Ground two: cumulative assessment of the appellant’s claims

37    The second of the appellant’s grounds charges the FCCA with having erred by not accepting that the IAA failed to assess the appellant’s claims that, if returned to Sri Lanka, he would be subjected to harm on account of his status as a wealthy Tamil who is perceived to oppose the Sri Lankan government “…due to his brother’s link with the LTTE”.

38    Again, having regard to the summary of the IAA Decision that appears above, it is clear enough that the IAA was conscious of—and considered—all of the claims that the appellant advanced in support of his Visa Application. It did so, in terms, both individually and cumulatively. There does not seem to me to be any warrant to impugn the IAA Decision as the product of jurisdictional error on this basis.

39    As to the appellant’s brother, the IAA found that “…the [appellant] has no profile as a person connected to the LTTE or other separatist profile, and neither does anyone in his family”.

40    Again, invited to elaborate upon this ground, the appellant made clear that his central complaint is that the IAA did not accept that he would, if returned to Sri Lanka, face the prospect of physical mistreatment. Again, it is not difficult to understand why the appellant would say so and why he would think that reasoning in this way should afford him the relief that he hopes to obtain. In truth, however, what the appellant seeks to achieve by this ground is to have this court review the IAA’s contrary conclusions on their merits. That is not a function that the court can undertake.

41    The second of the appellant’s four grounds also appears—I think quite apparently—to lack merit sufficient to warrant reinstatement of his appeal. Were it to be advanced, it would most likely fail.

Ground 3: assessment of the appellant’s other claims

42    By his third appeal ground, the appellant charges the IAA with having failed to take account of his status as a young, wealthy Tamil from Sri Lanka’s Northern Province who is perceived to have a political allegiance to the LTTE. There are obvious parallels between grounds 2 and 3 of the present appeal.

43    As the summary of the IAA Decision above makes clear, the IAA appears to have been well aware of those aspects of the appellant’s claims. It addressed them. Again, the appellant’s complaint is that the IAA did not accept what he advanced. Again, even if what the appellant advanced was (or is) true, the IAA’s failure to agree is not illustrative of jurisdictional error.

44    Were the appeal to proceed, the third of the appellant’s four grounds would have very limited, if any, prospects of being made out.

Ground 4: New information

45    Before the IAA, the appellant sought to introduce (amongst other things) new country information that had not been considered by the Minister’s delegate. The IAA declined to receive that information and the appellant maintains that that failure bespeaks jurisdictional error on its part. That error is said to manifest in the IAA’s failure to comply with ss 473DD and 473DE of the Act.

46    The IAA dealt with the information that the appellant sought to put before it as follows (IAA Decision, [6]):

The submission also contains reference to a number of country information reports that were not before the delegate. None of the country information provided postdates the [Delegate’s Decision]. I am not satisfied that the information was not, and could not have been, provided to the Minister before the Minister made the decision under s.65 of the Act, nor am I satisfied that the information contains credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred [appellant]’s claims. To the extent that these reports contain information that was not before the delegate, I find that it is new information. I am not satisfied that there are exceptional circumstances to justify considering the new information.

47    There is nothing in the above that bespeaks a failure to comply with s 473DD of the Act. Having decided not to receive the information that the appellant had proffered, there was no obligation imposed upon the IAA in respect of that information, whether under s 473DE of the Act or otherwise. It cannot be said that the IAA failed to comply with either section in respect of that information.

48    It appears from this ground of appeal that the appellant is aggrieved, for reasons that are readily understood (although not, with respect, well-founded), by the decision of the IAA not to take into account the new information that he urged upon it. Respectfully, that grievance is not sufficient to illustrate jurisdictional error on the IAA’s part. Again, the appellant’s submission would (were he permitted to make it) rise no higher than an invitation to this court to engage upon a review of the merits of that decision, a course unambiguously prohibited by a long line of established authority.

49    The fourth of the appellant’s four grounds is also lacking in merit sufficient to warrant reinstatement of the appeal.

Conclusion

50    I am not satisfied that any of the appellant’s appeal grounds is meritorious. All four would, were the appeal to be reinstated, almost certainly fail. Having regard to the explanation that the appellant has given for his non-attendance at the appeal hearing on 24 February 2020 and to the likely prospects that his substantive appeal might succeed, I am not persuaded that the interests of justice favour an exercise of the court’s discretion to set aside the Default Judgment. The appellant’s Reinstatement Application will, therefore, be dismissed with costs.

Associate:

Dated:    14 April 2020