FEDERAL COURT OF AUSTRALIA

CVG20 v Minister for Home Affairs [2020] FCA 689

ORDERS

THE COURT ORDERS THAT:

1.    The application to amend the notice of appeal is dismissed.

2.    The application to adduce further evidence on the appeal is dismissed.

3.    The appeal is dismissed.

4.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The appellant has appealed from a decision of the Federal Circuit Court of Australia (FCC) made on 30 May 2019, which dismissed an application for review of a decision of the Immigration Assessment Authority (the Authority). The Authority had affirmed a decision of a delegate of the Minister for Home Affairs not to grant the appellant a protection visa.

2    After instituting the appeal to this Court, the appellant obtained legal representation. He now seeks leave to adduce further evidence on appeal and to add new grounds which were not agitated before the primary judge.

Background

3    The appellant is a Tamil male of Hindu faith from the eastern province of Sri Lanka. He was born in the city of Sampur (sometimes spelt “Sampoor”), Trincomalee.

4    He arrived in Australia as an unauthorised maritime arrival on 8 November 2012. On 14 March 2016, he lodged an application for a Class XE, Subclass 790 Safe Haven Enterprise Visa (SHEV). On 2 May 2018, a delegate of the Minister for Immigration and Border Protection refused the application. The matter was automatically referred to the Authority for consideration pursuant to Part 7AA of the Migration Act 1958 (Cth) (the Act).

The Authority’s decision

5    In broad terms, the appellant claimed to the Authority that he had been forced to undertake military training at the behest of the Liberation Tigers of Tamil Eelam (the LTTE), and that as a consequence he feared harm from the Sri Lankan authorities if he were to return to Sampur.

6    The central focus of this appeal was the Authority’s findings at [13] of its reasons:

The delegate asked the applicant if he was ever officially recruited to the LTTE to which he replied that he was not, however, when the conflict broke out again in April 2006, he claimed the LTTE requested he fight for them. He told the delegate that he had not complied with this request. The applicant claimed that he avoided any consequences of refusing to fight for the LTTE by hiding. He told the delegate that he would hide inside his house and avoid them and would sleep in the ceiling. He then later claimed in interview that he was captured by the LTTE but was able to escape and pay his way out of the LTTE controlled area. I am not satisfied this is credible. I consider that if the LTTE had of required the applicant to fight for them, they would have been able to easily locate him and forced him to do so, particularly as the LTTE were aware of which school he attended and he provided evidence that indicates he continued to attend classes until 31 December 2006. I am also concerned the applicant did not raise any claims of being captured by the LTTE, escaping and paying bribes to leave the area in his written statement. The evidence he presented at interview in relation to these incidents I find nebulous and vague. The delegate also raised credibility concerns regarding the applicant’s ability to avoid recruitment with the LTTE. Despite this, neither in interview or the post interview submission was further evidence provided to support these claims.

7    The Authority was prepared to accept that the appellant may have undergone some form of compulsory combat training with the LTTE in 2005, but did not accept that he was called up to fight in 2006, or that he was captured by the LTTE and then escaped. It found that his only involvement with the LTTE was while he attended school in the period from October to December 2005.

8    The Authority accepted that he had travelled from Sri Lanka to Qatar in 2007 for work purposes and that he remained there working as a labourer and a painter for just under two years. He had travelled to Qatar on his own passport and re-entered Sri Lanka via the international airport in Colombo. On neither occasion did he encounter any difficulties with the authorities. That suggested he was neither known by the authorities nor had a profile that warranted adverse attention by the security forces.

9    The appellant claimed that his school friends who had engaged in LTTE training had been taken away by the authorities and that he was scared that the same would happen to him, although he had never been questioned, arrested or detained. The Authority found his evidence regarding what he believed to have happened to his friends and why he believed that he would be subsequently targeted, to be unsupported and unconvincing.

10    The appellant claimed that when he returned to Sri Lanka he feared being imputed with LTTE involvement by the Sri Lankan authorities for having undertaken LTTE training in 2005. As to his circumstances in 2009 the Authority found at [18]:

In his application the applicant stated that upon return from Qatar in January 2009 he was too scared to go back to the refugee camp where his family were living. He stated that he stayed with various relatives. At interview the applicant told the delegate that he was living with his parents and siblings after he returned from Qatar who had rented a house in Trincomalee. Despite this, the applicant has also provided a registration document from the Kiliveddy IDP camp that is dated 28 March 2009. The contradiction regarding his residency was put to the applicant at interview who explained that after he returned from Qatar his family rented a house outside of the camp and that he lived there with them. He explained that he and his family would visit the Village Officer (Grama Niladhari), who was located in the refugee camp, to attend to the mandatory registration requirements. He told the delegate that on these occasions, when he visited the refugee camp, he did not encounter any issues with the authorities. I am willing to accept the applicant’s explanation and that he lived outside the camp with his family while maintaining his registration with the authorities located inside the refugee camp. I note that despite these interactions with the authorities, the applicant appears not to have encountered any problems.

11    From May 2010, the appellant began working as a tradesman, largely performing the duties of an electrician or of an electrical apprentice and he worked at different sites across Trincomalee. He did this until he left for Australia in 2012. He did not claim to have any issues with the authorities whilst moving around Trincomalee in the course of his employment.

12    Although the appellant had said that he decided to leave Sri Lanka in May 2012 because he had heard a lot of people were being taken away, he did not depart for Australia until October that year.

13    The Authority was prepared to accept that whilst some of his relatives may have had connections to the LTTE and may have died or were injured in the civil war, it was not satisfied that they held high ranking positions or that their involvement resulted in any adverse consequences for the appellant.

14    It was observed that none of the appellant’s other family members have had any issues with the authorities on account of the limited LTTE profile of the appellant’s relatives. His family members continue to work and reside in Sri Lanka and continue to visit the Sampur region where his father works as a carpenter and farmer.

15    Although the appellant produced a letter purporting to be from a member of Parliament in the Trincomalee district, stating that the appellant was a person who came under strict surveillance of the Sri Lankan Army, the Authority did not accept its veracity and there were no examples given of any surveillance having occurred.

16    The Authority also disbelieved the appellant’s assertion, which was unsupported by any evidence or details, that a different cousin had been abducted by the LTTE.

17    It concluded that it was not satisfied that the appellant was a person of interest to the authorities in Sri Lanka when he left in 2012. He had never been questioned, detained or arrested and had been able to work both in Sri Lanka and overseas without issue. He was able to obtain a passport and freely leave and re-enter the country unhindered. He also obtained a drivers licence in 2012. In this respect the Tribunal also disbelieved him when he said that his father and brother had been stopped by the authorities in Sri Lanka and questioned about his involvement with the LTTE.

18    The Authority also considered Country Information to the effect that being an ethnic Tamil would not, of itself, warrant international protection and that, in general, neither would the fact that a person had past memberships or connections with LTTE, unless they had or were perceived to have had significant roles in that organisation or if they are or are perceived to be active in post-conflict Tamil separatism and thus a threat to the State. The appellant bore none of those characteristics. He had not claimed to have participated in any separatist or anti-government activities and the Authority was not satisfied that his minor historical links to the LTTE would result in him now or in the future being imputed with an LTTE connection. In general terms the Authority accepted that while some problems still exist, the circumstances were improving in Sri Lanka under the current government and that the appellant had none of the characteristics which would render him of concern to the Sri Lankan authorities.

19    Consequently, the Authority determined that it was not satisfied that he faced a real chance of any harm on account of his ethnicity, origins in the eastern part of Sri Lanka, his LTTE training or his relationship to his uncle or to cousins who may have participated with the LTTE.

20    The Authority also concluded that no ground for protection arose by reason of the appellant being, on his return, a failed asylum seeker.

21    For the same reasons it considered that he did not satisfy the complementary protection criteria either. He did not face a real chance of any harm as a consequence of his circumstances on his return to Sri Lanka.

Appeal to the FCC

22    The notice of appeal to the FCC identified the grounds of the application as being:

1.    The Second Respondent erred in law by making a decision not taking into relevant information, particularly that she is young female who may be subject to degrading sexual harassment.

2.    The Second Respondent ignored relevant material in a way that affected its exercise of power.

3.    The Respondent has not properly considered the alternative criterion in under the Complimentary protection.

23    The first ground appears to have been copied from some other application and was wholly irrelevant to the appellant’s proceedings. The second and third grounds were impermissibly vague.

Decision of the FCC

24    The application for review was dismissed by the FCC on 30 May 2019. There is no need to assay the reasons of the primary judge. The appellant, by his present application, only seeks to rely upon grounds which were not agitated before that court.

Appeal to this Court

25    An amended notice of appeal was filed on 14 June 2019. The grounds identified were an alleged failure to consider an integer of the appellant’s claims, the occurrence of an unreasonable reasoning process and unreasonable credibility findings.

26    Some of the particulars of the grounds of appeal in the notice of appeal were replicated in the proposed further amended notice of appeal which read as follows:

1.    The Federal Circuit court erred in that it failed to find that the decision of the IAA was infected with jurisdictional error, in that:

a.    The First and/or Second Respondent failed to afford the Appellant procedural fairness in its reliance on evidence of the Appellant given its conduct of the questioning of the Appellant, the translation of his answers, the failure to translate questions, such that the Appellant was not given a real and meaningful hearing.

b.    The Second Respondent acted unreasonably, illogically, without active intellectual consideration in that it:

i.    Misconstrued the evidence regarding the timeline in which the LTTE were looking for the Appell (sic),

ii.     Misconstrued the evidence regarding the dates of the Appellant’s schooling,

iii.     Misconstrued the evidence regarding the control of the area in which the Appellant was schooled.

iv.     Misconstrued the evidence regarding the camps in which the Appellant stayed.

c.     The Second Respondent made unreasonable and/or credibility findings that tainted the totality of the decision.

27    The Minister submitted that the proposed amended notice of appeal, although purporting to assert one new ground of appeal, contained three new proposed grounds, being:

(a)    that the Authority failed to afford the Appellant procedural fairness due to alleged translation issues at an interview before the delegate, such that the Appellant was not given a real and meaningful hearing;

(b)    that the Authority acted illogically in that it misconstrued certain items of evidence; and

(c)    that the Authority made material illogical credibility findings.

28    The three separate grounds of appeal identified by the Minister accurately reveal the issues raised by the proposed amended notice of appeal. However, at the hearing of the appeal, Mr Schipp of Counsel for the appellant, confined the appeal to the singular ground that a finding of the Authority in [13] of its reasons was illogical or irrational. The particular finding concerned the appellant’s claim that although the LTTE requested that he fight for them in the civil war, he refused and was able to avoid any consequences by hiding inside his house and sleeping in the ceiling. The Authority disbelieved this on the basis that, if the LTTE had requested the appellant fight for them and he had refused, they would have been able to locate him and force him to fight because they knew where he went to school and he had provided evidence that he continued to attend classes until 31 December 2006. It was argued that this finding was illogical and irrational given the evidence before the Authority.

The raising of new grounds on appeal

29    In seeking leave to raise a new ground of appeal the appellant relied heavily on the decision in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (VUAX) and, in particular, the oft cited paragraphs at 598–599 [46]–[48] which read:

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 and 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. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

30    Whilst this statement of principle can be accepted as far as it goes, attention must be given to some recent authorities on this topic. The first is that of SZSFS v Minister for Immigration and Border Protection (2015) 232 FCR 262. There Logan J noted the force of the observation of the High Court in Coulton v Holcombe (1986) 162 CLR 1 at 7 (Coulton v Holcombe), the relevant part of which appears in the quote cited in VUAX above. His Honour then opined that in VAUX the Full Court had held that leave to raise a new ground may be granted only if that ground clearly has merit and permitting it to be raised entails no real prejudice to the respondent. However, he also said that it is not infrequent that visa applicants are only able to secure legal representation after an original notice of appeal has been filed such that, only then, is a person with relevant legal training able to turn their mind to what is truly an arguable case. He also observed the importance of an appellant being able to agitate a meritorious ground and that serious prejudice may result if that opportunity is denied.

31    The next case of importance is Han v Minister for Home Affairs [2019] FCA 331, where Bromwich J analysed at length the authorities relevant to this topic. His Honour noted that in many cases it may be entirely appropriate to decide questions of whether leave should be given by according dominant, but not exclusive, weight to the merit of the proposed ground. However, his Honour held that merit, whilst necessary, may not of itself be ordinarily sufficient and that other features will generally need to be absent or present. He cited, in particular, the existence of an acceptable explanation for the ground not being advanced below, the nature and extent of any injustice that may result if the issue is not raised and the prejudice to the opposing party. His Honour warned against the development of a practice whereby appeals become, in truth, nothing but a new trial merely on the basis that a ground with some merit may exist. In that respect his Honour observed that appeals, and even appeals by way of rehearing, are not to be relegated to the role of providing an opportunity for a litigant to conduct a second trial upon a different basis, the first trial having failed. In this respect his Honour relied upon the observations of the High Court in University of Wollongong v Metwally (1985) 60 ALR 68 at 71 and Coulton v Holcombe at 8.

32    Of significance to Bromwich J was that allowing a party to raise new grounds on appeal would subvert the evident design of Part 8 of the Act and, in particular, s 476A which precludes the Federal Court from having original jurisdiction in cases of this nature. His Honour adopted the observations of the Full Court in BZD17 v Minister for Immigration and Border Protection (2018) 161 ALD 441 at [28]–[29], where the Court said:

…as Perram J emphasised in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 (AAM15) [at [14]]:

…Pt 8 of the [Migration Act], which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance … this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

The approach adopted by his Honour in AAM15 is consistent with the fact that, following the advent of special leave to appeal to the High Court, intermediate courts of appeal ought in general to be regarded as the final courts of appeal: Morris v R (1987) 163 CLR 454 at 475 (Dawson J) cited with approval in Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194 at 217-218 (the Court). As, by analogy, Kirby J, writing extra-judicially, has observed:

The interposition of the Court of Appeal in England produced ‘two tier appeals’, with a further avenue of appeal to the House of Lords, either by leave of the Court of Appeal or by the Law Lords themselves. However, as Sir Raymond Evershed explained in 1951, ‘[t]he Court of Appeal is the final court, in fact, for ninety-five per cent of the civil cases.’ The same was quickly to prove the case after the creation of the Australian permanent courts of appeal.

33    To the observations of Perram J in AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 (AAM15), it can be added that allowing a new ground to be raised on appeal is to deny the respondent a layer of appellate scrutiny. That issue becomes more acute when it is kept in mind that the appellate jurisdiction of this Court in migration matters is most frequently exercised by a single judge rather than by a Full Court. To allow a new ground to be raised on appeal in this context effectively only allows the issue to be considered by a single judge. Whilst I would not subscribe to Perram J’s view in AAM15 that a review by the High Court could properly be described as “cursory” in any way, it is true that the nature of the special leave process has the result that very few matters warrant the attention of that Court.

34    Recently, in SZUYG v Minister for Immigration and Border Protection [2019] FCA 2040, Logan J reasserted the importance of the merit criterion when determining whether leave to raise a new ground should be granted. His Honour observed at [40]:

…It is trite that this Court exercises appellate, not original, jurisdiction in matters of the present kind. But the ultimate touchstone in relation to the granting of leave to raise an issue for the first time on appeal is whether that is in the interests of justice. Given the possibility for an appellant on return on the basis of a jurisdictionally erroneous decision, to which I referred in SZSFS, I find it impossible to conceive of a circumstance, in the exercise of the judicial power of the Commonwealth in this type of case, where it would ever be in the interests of justice to refuse leave to amend to an appellant to raise a meritorious issue, providing that entailed no prejudice to the Minister. Such prejudice could but rarely if ever lie in the lateness with which a pure point of law was sought to be raised but it most certainly would usually exist if the point sought to be raised required an evidentiary foundation which was not led in the original juridical review proceeding and could have been challenged on the evidence in that proceeding by the Minister.

35    Ultimately, the weighing process in the exercise of the discretionary power to allow a new ground to be raised on appeal will vary from case to case and depend upon the particular circumstances. In any such deliberative process the existence of some merit in the proposed new ground is a necessary and often significant factor.

Leave to adduce additional evidence on appeal

36    In support of the application for leave to raise a new ground on appeal, the appellant also sought leave to adduce evidence which was not before the primary judge. In part, that evidence consisted of the full text of an article (written by a Col R Hariharan (retd)) which had been referenced by the appellant in his written submissions to the Authority. The point sought to be made from the article was that from early September 2006 the Sri Lankan army had taken control of the Sampur district in Sri Lanka where the appellant had lived and attended school.

37    The appellant was not represented before the FCC and it seems he is not fluent in English. It was also apparent that he had little understanding of the process before the FCC, the need to adduce evidence at that time or, if he was so aware of it, how that evidence might be adduced.

38    The Minister correctly submitted that in order to adduce new evidence on the appeal two grounds must be shown to exist: s 27 of the Federal Court of Australia Act 1976 (Cth); NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [42]; namely:

(1)    the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and

(2)    the evidence must be such that very probably the result would have been different.

39    In relation to migration matters it has been recognised that the Court is concerned with whether the fresh evidence will bear upon the jurisdictional error which is alleged: MZZUQ v Minister for Immigration and Border Protection (2015) 145 ALD 662 at [24] per Gilmour J.

40    The substance of the Minister’s opposition to the granting of leave to adduce new evidence was, firstly, that it is unlikely that its reception at the hearing before the FCC would have made any difference to the outcome of the application. Second, the Minister submitted that the new grounds of appeal are so devoid of merit that leave should not be granted to allow them to be raised and, it follows, the proposed new evidence should also be rejected.

Contextualising the factual issues

41    The appellant’s recourse to assertions of unreasonableness or irrationality in the written submission and in oral address was lacking any contextual framework. It seemed to be submitted that a jurisdictional error arose simply by reason of the making of such errors. Indeed, the appellant sought to rely upon the modern iteration of “Wednesbury unreasonableness” as articulated by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. However, that case concerned the question of unreasonableness, illogicality or irrationality in the exercise of a power and, in particular, a discretionary power. There is no equivalence in the present matter.

42    Here, the question concerned whether the appellant was entitled to the grant of a protection visa pursuant to s 65 of the Act. If the Authority reached a state of satisfaction that the appellant met the relevant statutory criteria, the matter would have to be remitted to the Minister. Conversely, if the Authority was not satisfied that the criteria for the grant of a protection visa were met, it would have to affirm the decision.

43    The existence of the required state of mind is a subjective jurisdictional fact on which the Minister’s power to grant or refuse the visa is conditioned. This was discussed at length in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 (EHF17); see also Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073. As those decisions show, if the relevant state of mind on which the exercise of the power was conditioned did not exist, the purported exercise of power would be in excess of the decision-maker’s authority. There are a number of errors which might vitiate such a state of mind. Relevantly, several High Court authorities have identified one as being illogicality or irrationality in the fact finding process: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224.

Merits of proposed new ground of appeal

44    In this case the appellant’s “real” complaint was that the Authority’s conclusion, that it was not satisfied the appellant met the protection visa criteria, was vitiated by an illogical or erroneous finding of fact. He points specifically to the Authority’s conclusion that the appellant’s claim that he was sought by, and evaded, the LTTE was not credible. He complains that this conclusion was illogical, irrational or not based on probative evidence.

45    At [13] of its reasons the Authority identified why it did not believe the appellant’s claims that he had been able to evade the LTTE:

… I am not satisfied [these claims are] credible. I consider that if the LTTE had of required the applicant to fight for them, they would have been able to easily locate him and forced him to do so, particularly as the LTTE were aware of which school he attended and he provided evidence that indicates he continued to attend classes until 31 December 2006. …

Put simply, the Authority formed the view that the LTTE could have found the appellant if they had wished, and therefore it did not accept the LTTE had been searching for him as claimed.

46    The appellant’s main ground for alleging illogicality was the Authority’s conclusion that he had continued to attend classes until 31 December 2006. He submitted that the Authority ought to have found that he completed his schooling in August after finishing his exams. In the written submissions the following proposition was advanced at [61]:

Thus for the period April to August the LTTE was not looking for him as they had agreed to let him finish his exams. After then, after his exams finished in August, when he was no longer going to school, the LTTE were looking for him, and while they did capture him, he escaped and then paid a bribe to enter into the Government side. This, means that the conclusion that the LTTE was easily able to locate him and conscript him is plainly incorrect.

47    On this point, the evidence before the Authority was not consistent.

48    The appellant submitted that he had not provided evidence that he continued to attend classes until 31 December 2006 and that the delegate misunderstood what he had said about that issue. In particular, reference was made to the transcript of the interview with the delegate where the appellant had given evidence about his claims. In relation to his evidence that, as a secondary school student, he was required to undertake military training with the LTTE, he had said that it took place over a period of four months in the period from October until December 2005. He further said that the second stage of training was to occur in January 2006. However, as he had his exams in August, he (and others) negotiated with the LTTE to allow them to study instead.

49    With respect to these matters, the following appeared in the transcript of the interview:

Interpreter:     OK, so I started in January

Case officer:     Yep

Interpreter:     Then the war started in April

Case officer:     Yep

Interpreter:     But like yeah, in spite of the war everything that, we went to             school and like we managed to finish exam

Case officer:     Exams, yep OK. And that was in 2000 and, what year was        that? 2000 and

Applicant:     2006

Case Officer:    2006

Interpreter:     OK say, at that time like I had a very difficult time because we were displaced

50    In relation to how it was that the appellant was able to avoid being recruited to fight for the LTTE the following was relevant:

Case officer:     Right, OK so you finished your studies then. Did you actually, were you like officially recruited into the LTTE at all?

Interpreter:     OK say, after I finished my exam and everything I was called by them but I refused. I didn’t go.

Case officer:     OK so, what did they do when you said that? What did the LTTE say?

Interpreter:     OK say, normal circumstances if you refuse to go back

Case officer:     Yep

Interpreter:     They will forcefully take. But in my circumstances like I was in hiding, like yeah so, I was like yeah

Case officer:     So, where were you hiding?

Interpreter:     OK say, like I was still living in the control, under the LTTE control areas, but like I managed to stay daytime in one place and night-time in another place and just I was avoiding them

Case officer:     OK, alright.

Interpreter:     OK, like I sleep under the ceiling.

Case officer:     OK it just sounds a bit like, I’m finding that difficult to believe the LTTE came into your school and got you and made you do the compulsory training. Yet, you were still able to avoid them when they called you up to come in to fight.

Interpreter:     OK say, like when initially

Case officer:     Yep

Interpreter:     When they recruited me, like took me like, that time there’s no war or anything like that

Case officer:     Yep

Interpreter:     But this time the final, after I finish my exam and all, war was going on. So that’s why like, I was very scared to go out and

Case officer:     OK

Interpreter:     OK say, like in that area like I was hiding from them. But once I got caught by the LTTE and they took me somewhere then but I was able to escape.

Case officer:     OK alright, so but, OK. I’m just trying, trying to get it in my head how, how that can happen. It just, as I said I’m just sort of finding that a bit hard to believe, when you got taken, and your living in a LTTE controlled area, and if they wanted you, they could have come and got you, if you’d already done the training and they took you to do the training.

Case officer     And you’re and your then going to and from school as well.

        [Not translated]

Interpreter:     OK say, like at one stage, yeah it was like you can escape giving money and everything and that’s how I came out of the LTTE controlled area. I had to bribe somebody.

51    Counsel for the appellant submitted that this exchange clearly showed the LTTE had requested the appellant fight for them after he finished his exams in August 2006, at which point it could be inferred he was no longer attending school. This submission faced two difficulties.

52    The first was that the temporal aspects of the appellant’s statements to the delegate on this topic were ill-defined. The Authority described his evidence as “nebulous and vague”. There is no evidence that he ceased attending school once he had completed exams in August 2006. He did not say that his schooling ended at that point in time, but merely that the LTTE called him after he had finished his exams in August.

53    The second was that the appellant had produced and relied upon a document called “Pupil’s record sheet” which purported to identify the dates of his attendance at the Sampur School. At the top of the sheet the following was recorded:

This record sheet should be retained by the Principal of the school in which the student is studying and should be filled up personally by him / her and handed over to the legal guardian at the time the pupil leaves school. Please note that it is very important that the information furnished herein is correct in all respects.

The document identified the date of admission to the school as 6 January 1993 and the “Date of leaving” as being 31 December 2006. The identified cause of leaving was recorded as, “parents’ wish”. The document was dated 31 December 2006, adjacent to a signature purporting to be the Principal of the Sampur School.

54    Mr Schipp for the appellant submitted that the document, being the pupil’s record sheet, had a printing date of June 2008 which suggested that it was prepared after the date on which it was purportedly signed. Whilst that may be true, it does not necessarily mean that the information in it is not. It was evidence on which the Authority could rely to ascertain the dates on which the appellant attended school. That conclusion is fortified by the fact that the appellant had supplied the document in support of his claim. Mr Schipp also submitted that this document evidenced the dates of the appellant’s enrolment but not his attendance. That conclusion is not clear on the face of the document and it was open to the Authority to find otherwise.

55    Therefore, if it is assumed that there is an inference to be drawn from the appellant’s statements to the delegate that he only attended school until he completed his exams in August 2006, there was contrary direct evidence that he did not leave until 31 December 2006.

56    In addition to the above, in his SHEV application the appellant identified that he had attended primary and secondary school from January 1994 to December 2006. He also identified, in response to a question as to his previous employment, that he was a child/student from November 1987 to March 2007. The first statement is further direct evidence of the date on which he completed his secondary school education and the Authority was entitled to rely on it to support its conclusion. An inference, although not a strong one, can be drawn from the second statement that he remained at school until at least December 2006.

57    The question is then: was the Authority illogical or irrational in rejecting the appellant’s claim that he was pursued by and evaded the LTTE on the basis that the LTTE members knew where he attended school and he continued to attend there until 31 December 2006?

Was the Authority’s finding illogical or irrational?

58    It must be kept steadily in mind that the process of administrative fact finding differs substantially to that engaged in by courts. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 656 [143], Gummow J identified the different approaches to fact finding in curial and administrative settings and, in doing so, referred to the observations of the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282:

Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature (Mahon v Air New Zealand Ltd [1984] AC 808 at 814). A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law.

59    The administrative decision-maker is entitled to make a finding of fact based on the existence of some evidence, even if there exists other substantial evidence to the contrary. This has correlations in the area of jurisdictional error which might arise where, in the course of exercising power, the repository of that power has made a finding of fact based upon “no evidence”: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 359–360 per Mason J.

60    Here, there existed evidence on which the Authority could rely for the purposes of concluding that the appellant had remained at school and attended classes until 31 December 2006. It was provided by the appellant in the Pupil Record Sheet and in his answers in the visa application form. That was more than sufficient for the Authority to make the finding it did. Even if the appellant’s oral evidence to the delegate was to the effect submitted by Mr Schipp, the Authority was not required to accept it. It was entitled to prefer the information in the documents provided to it.

61    The nature of the illogicality or irrationality which might occur in a fact finding process and which might vitiate a subjective jurisdictional fact was considered in EHF17 at [76]–[85] and there is no need to repeat that discussion here. It sufficies to say that the words “irrational” or “illogical” have their ordinary meaning “of devoid of, or contrary to, logic; or ignorant or negligent of, and not in conformity with, the laws of correct reasoning (see: The Oxford English Dictionary 2nd ed 1989, The Macquarie Dictionary 2nd ed. 1991), and are analogues of arbitrary or perverse”: WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 at [7] per Lee J. The manner of assessing whether a conclusion or finding of fact is illogical or irrational was identified by Crennan and Bell JJ in SZMDS at 648 [131] where their Honours observed:

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, 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.

62    It is not necessary to consider that somewhat difficult question of whether, in order to conclude that a decision is illogical or irrational, one looks only at whether the conclusion of the decision-maker is illogical or whether the actual reasoning used to reach that conclusion is illogical. Here, there was more than sufficient evidence on which an administrative decision-maker could conclude that the appellant had continued at his school until December 2006. The Pupil Record Sheet and the appellant’s answers in the application for a visa were each, by themselves, sufficient support for that finding. Contrary to the appellant’s submissions, his evidence at his interview did not establish that he only remained in school until August 2006 but, even if it did, the Authority was entitled to rely upon the documentary evidence to the contrary. It cannot be said that no rational or logical person could have reached the conclusion which the Authority did on this point or could have adopted the Authority’s reasoning.

63    It should also be observed that, even assuming the Sri Lankan army took control of the Sampur district on 4 September, on the inferences from the appellant’s statements to the delegate, the factual foundation for the Authority’s conclusions could still be established. The appellant said that he finished his exams in August and, given that hostilities had commenced in April, the Authority could have considered it surprising that, had the LTTE required him to fight, it would not have been able to locate him and force him to do so before the government took control of the area. As Mr Schipp ultimately conceded, on the assumption that the appellant had completed his schooling in August 2006, there was a brief period of time before the army took control during which the LTTE could have sought to conscript the appellant had it been so inclined. Ultimately, however, that is not to the point, as the Authority was entitled to rely upon the documentary evidence before it to conclude that the appellant continued to attend school until 31 December 2006. As it was, the Authority determined that the LTTE neither sought him nor captured him.

64    It was also submitted that the findings of the Authority were illogical or irrational because they were temporally impossible. This submission was difficult to follow but seemed to suggest that, because the Sri Lankan army had taken control of the Sampur region by the time the appellant had finished his exams or thereabouts, the conclusion that he continued at school until December 2006 was illogical. In this respect the appellant placed reliance on the evidence of the article “Sri Lanka: LTTE’s moment of truth at Sampur – Update 101” where it was stated that Sampur fell under the Sri Lankan army’s control from 4 September 2006. Mr Schipp submitted that it followed that from 4 September 2006, the Sampur district became “an active “theatre of war” from which [the appellant] had been displaced” and that the Authority wrongly determined that the appellant continued to go to school during this period. This submission overstated the nature of the further evidence on which the appellant relied. There is nothing in the document tendered to suggest that the Sampur district became an active theatre of war after September 2006. The new evidence tends to establish that from that time it came under the occupation of Government forces. It is to be further observed that the appellant himself said that he continued to attend school so as to sit his exams in August 2006 but also says that he was displaced by the outbreak of hostilities in April 2006. This anomaly in his evidence was not explained. It was suggested by Mr Schipp that he may have sat his exams elsewhere but there is no evidence supporting that submission.

65    As mentioned, the Authority was entitled to rely upon the evidence adduced by the Appellant as to where he was going to school during the period up to December 2006. There was nothing illogical or irrational in doing so and it was entitled to prefer the documentary evidence over the appellant’s vague oral statements as to the circumstances of his schooling. It follows that there was no illogicality in its conclusion that it did not believe the appellant when he said that he was required to hide from the LTTE or that he had been captured by them but had escaped.

66    Therefore, regardless of how the appellant’s submissions are framed, there was no irrationality or illogicality in the Authority’s reasons which might vitiate its conclusion that it was not satisfied that the appellant did not meet the requirements for a protection visa.

67    The only conclusion can be that there is no merit in the proposed ground of appeal which would justify granting leave to raise it on appeal. That being so there is no need to consider the effect of the lack of explanation for not advancing the proposed ground below or the question of prejudice to the Minister.

Materiality of alleged error

68    Even if the appellant’s submission was accepted, it is difficult to see how the alleged error in the Authority’s finding at [13] was “material” so as to warrant a finding that the Authority’s affirmation of the Minister’s decision was vitiated by jurisdictional error.

69    A factual error in the formation of a subjective state of mind will only result in a finding of jurisdictional error where the factual error is “material” in the sense used in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain) at [29]–[31] and [72] and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [84]–[95]: Chang v Neill [2019] VSCA 151 at [92]–[94]; see also Singh v Minister for Home Affairs [2020] FCAFC 7 at [94]. This follows from the fact that allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry, being whether or not there has been jurisdictional error on the part of the Authority: Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (SZUXN) at [55].

70    In Hossain the plurality of the High Court identified the threshold of materiality in the following terms at [30]:

Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.

Similarly in SZMTA, Bell, Gageler and Keane JJ described an error as material if it “could realistically have resulted in a different decision”: (at [45]).

71    Consequently, where the error is a jurisdictional fact error, an evaluative task has to be undertaken to ascertain whether the impugned finding of fact actually contributed to or affected the formation of the necessary state of mind. As explained by Wigney J in SZUXN at [55]:

… Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]–[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]–[67].

72    If it is assumed in the present case that the Authority erred in concluding that the appellant continued to attend school until December 2006, the question which arises is whether that error denied the appellant “the possibility of a successful outcome”.

73    Even if, as Counsel for the appellant urged this Court to find, the only conclusion open to the Authority on the evidence was that the appellant did not attend classes after his final exams in August 2006, this fact does not appear material to the Authority’s ultimate conclusion that the appellant would face no harm on his return to Sri Lanka. Although the Authority’s findings in [13] went to the appellant’s credibility, the Authority ultimately concluded that the appellant did not have any significant connection with the LTTE and was of no interest to the Sri Lankan authorities. It reached that conclusion on the basis of other substantial probative evidence before it (see [26] of the Authorities reasons). This included the fact that the appellant was able to pass through international airport security without issue in 2007, had never been detained or questioned (by the Sri Lanka authorities), and had obtained a passport in 2007 and a driver’s licence in 2012. The Authority also relied on the fact that the appellant was able to engage in work both overseas and domestically in Sri Lanka without apparent issue.

74    In this case it is difficult to see how the alleged error at [13] of the Authority’s reasons could have realistically resulted in a different decision.

Conclusion on appeal

75    The Minister’s submissions that the proposed new ground of appeal has no merits should be accepted. For that reason leave to raise it on appeal is refused. The new evidence which was sought to be tendered was for the purposes of the new grounds of appeal and, although it was considered, it was insufficient to establish that those grounds had any merit. The application to adduce new evidence on the appeal is therefore also rejected.

76    It necessarily follows that no error has been demonstrated in relation to the primary judge's reasons or conclusions.

77    The appeal must necessarily be dismissed and the appellant should pay the first respondent’s costs.

Associate:    

Dated:    18 March 2020