FEDERAL COURT OF AUSTRALIA

BLU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 706

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to rely on a new ground of appeal, and the appeal, be dismissed.

2.    The appellants 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

BURLEY J:

1.    INTRODUCTION

1    The appellants are a family of four Sri Lankan citizens: a husband and wife, and their two children. They arrived in Australia by boat on 1 May 2013. On 29 March 2017, the appellants lodged a combined application for Safe Haven Enterprise Visas (SHEVs). The first appellant (husband) and the second appellant (wife) made partially separate claims for protection. The third and fourth appellants (children) relied on their parents’ claims as family members.

2    The visa applications were first considered by a delegate of the first respondent (Minister), who refused them visas in a decision dated 23 August 2017.

3    The claims advanced on behalf of the husband were, broadly, that he fears harm if required to return to Sri Lanka because: he has had imputed links to the Liberation Tigers of Tamil Eelam (LTTE); he has had political associations that caused him to be abducted by the Karuna group and harmed by a former LTTE member; he was a witness in a court case against members of the Karuna group; his family were subject to a kidnapping attempt in 2007; and because he is a Tamil male from a former LTTE-controlled area and, as a goldsmith and owner of a jewellery store as well due to his political associations, has previously been subjected to extortion which is likely to continue.

4    The claims advanced on behalf of the wife were, broadly, that she fears harm if required to return to Sri Lanka because: of her family’s profile as LTTE supporters; her husband’s problems with the Karuna group, for which she too had been harmed; and because she was the victim of an assault by Karuna group members where they attempted to rip off her clothes and rape her (the alleged sexual assault).

5    The appellants applied for a review of the decision by the Immigration Assessment Authority (IAA), which on 23 February 2018 determined that the decision of the delegate should be affirmed. The appellants sought to rely, in addition to the claims summarised above, on a number of items that were characterised by the IAA as “new information” that fell within s 473DC of the Migration Act 1958 (Cth). The IAA concluded that, barring one matter, the majority of the new information could not be taken into account because the appellants had not satisfied it that there were exceptional circumstances to justify taking it into consideration pursuant to s 473DD of the Act.

6    The appellants then applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the decision of the IAA. They relied on one ground in the review which was:

The [IAA’s] reasoning concerning the [wife’s] sexual assault claim was so unreasonable and not open to it.

7    Eleven particulars were appended to that ground. At the commencement of the hearing, the solicitor representing the appellants sought leave to rely on one additional particular, namely:

Failure by the [IAA] to consider the use of the discretion under s 473DC.

8    The learned primary judge refused leave and proceeded to consider the pleaded grounds of appeal. On 27 June 2019 she dismissed the application: BLU18 & Ors v Minister for Immigration & Anor [2019] FCCA 1767.

9    The appellants now appeal to this Court. They filed a first notice of appeal on 10 July 2019 and an amended notice of appeal on 24 July 2019. Neither is now relied upon. Instead, in written submissions filed shortly before the hearing, the appellants advance only one ground of appeal, which is as follows:

The FCCA Judge Emmett failed to hold that the IAA made a jurisdictional error by failing to consider or exercise its power under s 473DC of the Migration Act 1958 (Cth) to interview the second applicant regarding the claims of sexual assault.

10    This proposed ground corresponds to the particular which the FCCA refused the appellants leave to rely on, referred to above at [7].

11    Furthermore, the appellants seek leave to adduce fresh evidence on the appeal pursuant to r 36.57 of the Federal Court Rules 2011 (Cth), being a transcript of an interview conducted by the delegate of the husband and wife on 5 June 2017. They submit that the admission of further evidence should be permitted because the interview was part of the review material before the IAA and at least the oral recording should have been in the materials before the FCCA.

12    For the reasons set out below, leave to rely on the fresh evidence is allowed, but the application for leave to rely on the ground proposed to be advanced is refused. The appeal must be dismissed.

2.    THE DECISION OF THE DELEGATE

13    I have summarised in broad terms the claims advanced by the husband and the wife. The present appeal focusses attention on the wife’s claim that she had been the victim of a sexual assault by Karuna group members. The delegate summarised that claim as follows:

•    One day when the Karuna group came to search their house, her husband was not at home. They pulled down her clothes and so she screamed. They left after that. Another time, they hit her on the head with a gun and she was treated in hospital for 3 days.

•    Shortly before they left Sri Lanka, the applicant was at home with her children when the Karuna group came. They had recently asked her husband for a large amount of money. They broke the door and came inside the house. They took off her clothes, exposing her body. They tried to rape her. She screamed and the neighbours came to help. She did not mention this incident to the department previously because she doesn’t like thinking about it and at the arrival interview there was a male interpreter and she did not wish to talk about it.

14    The delegate made the following findings of fact in relation to these claims:

Problems with the Karuna group

The applicant claims that on one occasion, she was hit on the head by members of the Karuna group who were looking for her husband. The applicant also claims that on another occasion, members of the Karuna group attempted to rip her clothes off her but stopped when the neighbours intervened. Again, they were looking for her husband.

The applicant claims that as a result of her husband’s problems with the Karuna group, she was sexually assaulted by members of the Karuna group in November 2012. The applicant claims that they came to her house seeking her husband and when they discovered he was not there, they sexually assaulted her.

At the PV interview, the applicant was asked for further details about the event. The applicant clarified that she did not know the two men who entered her house. She assumed they were members of the Karuna group and that they were there because of her husband. The applicant further stated that they had come to her house because they knew she was alone. I note that this is not entirely consistent with her claims in her PV application where she claimed that members of the Karuna group came to her house and asked where her husband was.

While I accept that the applicant was sexually assaulted based on her statements at the PV interview, I am not satisfied that the applicant knew the identity of the persons who assaulted her. Nor am I satisfied that the attackers were necessarily members of the Karuna group. Given the country information noted above in regards to sexual harassment and violence in Sri Lanka, it is possible that the crime could have been carried out by persons unrelated to the Karuna group. While I accept that the applicant suspects it was members of the Karuna group given the problems her husband had faced in the past, I find that she has embellished her claims in that regard in order to strengthen her claims for protection.

Therefore, while I accept the applicant was sexually assaulted, I do not accept that it was members of the Karuna group.

15    Later in the reasons, the delegate records her acceptance that the wife was sexually assaulted in 2012 by unknown persons, and that the wife believes her assailants to have been the Karuna group, but the delegate finds that belief to be speculative given she did not know the identity of her attackers and given they did not make any reference to her husband. Having regard to the country information of numerous reports of sexual violence occurring in Sri Lanka, and to the country information that violence carried out by paramilitary groups has significantly decreased, the delegate did not accept that the wife would be of ongoing interest to the Karuna group or that there is a real chance that she would face serious harm as a result of her husband’s problems with the Karuna group.

3.    THE DECISION OF THE IAA

16    The appellants were represented before the IAA by a registered migration agent. They made submissions in support of the application. The appellants also submitted new information for the IAA to consider that was not before the delegate, including country information going to further alleged risks to the appellants of violence at the hands of the Karuna Group if they are returned to Sri Lanka. The IAA declined to consider that new information.

17    The IAA also declined to consider new information regarding the alleged sexual assault of the wife, namely a claim that the sexual assault was an attempt by the Karuna intelligence and the Criminal Investigation Department (CID) to disgrace the family as members of society and make it impossible for them to live in society. It reasoned as follows:

11.    The information relates to past claimed events. It is personal information. However, the neither the applicant nor the applicant’s wife had mentioned it in her arrival interview. I accept that there may be some reluctance to disclose fully such incidents; however, this claimed event was one of the main reasons for the departure. Further, the applicants mentioned the sexual assault in their written statement, so could have mentioned this then. I consider also the applicant and his wife had plenty of opportunity to mention the disgrace and respect part of the claim, but they did not. Further, the applicant’s wife did not know the identity of the attackers and they did not mention the applicant’s husband or anything that linked them to the Karuna Group, which is contrary to the new claims. Further, for reasons set out later in this decision I am not satisfied the underlying claim of sexual assault or molestation is reliable. I am not satisfied that s 473DD(b)(ii) is met.

12.    I have therefore not considered the information.

18    In relation to the allegations of sexual assault, the IAA, unlike the delegate, did not accept that the sexual assault had occurred, and made the following relevant findings:

77.    I have considered [the wife’s] claims of sexual harassment. She did not mention this claim until September 2015. The applicant claimed she did not want to talk about it at the arrival interview in July 2013 as she had a male interpreter. I accept that descriptions of sexual assaults may be difficult. However, I consider it is difficult to believe that she did not even mention that she was assaulted or visited by Karuna in 2012, particularly given it occurred just prior to their departure from Sri Lanka. Further, she was asked if there were any other reasons why she left Sri Lanka and confirmed the extortion demands were the sole reason for their departure. Further, she continued to mention the husband’s 2004 abduction, and demands for money, but did not mention any attempted kidnap in 2007 (as claimed by applicant 1) or visit by Karuna in 2012.

78.    Further, [the wife’s] own account of the claimed sexual assault was not consistent in a number of respects. For instance in her statement she claimed she was sleeping and men broke the door down, but in her interview she said she heard a knock on the door, thought her husband was coming, so opened the door. In her statement she claimed 3 men came inside, but in her interview she stated two men came inside. In her statement she stated the neighbours came to help and the men left. However in her interview she claimed a motorbike sound was heard outside so the men ran away. In her statement she stated the men asked where her husband was. However in her interview she said the men did not say anything. In her statement she stated she phoned her husband and the neighbours helped her to join the husband at his mother’s house. However, in her interview she said 10 or 15 minutes after the attack her husband came and she told him what happened but they promised not to tell anyone.

79.    Further, [the wife’s] account was not consistent with the [husband’s] statement about where the attack took place, who made phone calls to whom and whether the husband returned to the house. For instance, the husband stated they took [his wife] outside and she was hit over the head; and in the morning the neighbours telephoned the husband’s mother and told her about the incident and what happened to [the wife]; so upon hearing this the husband decided that his family must come his mother’s house. However, [the wife] said the event took place inside the house; she did not mention she was hit over the head; she and the neighbours phoned the husband (not the mother) and the husband came to the home after 10 or 15 minutes.

80.    Further, I consider that the husband would have received a demand for a large sum of money and threatened the day or few days before and leave his wife and children at home alone lacks credibility. I do not accept that if such a serious extortion demand and threats of abduction and harm to him and the family, that the husband would leave the family behind and go to his mother’s home.

81.    Having considered the evidence, I do not accept [the wife] was sexually assaulted or that anyone came to their home in December 2012 demanding money or making threats.

4.    THE DECISION OF THE PRIMARY JUDGE

19    As noted earlier, ground 1 before the FCCA (excluding particulars) was couched as: “The [IAA’s] reasoning concerning [the wife’s] sexual assault claim was so unreasonable and not open to it”. The primary judge records in her decision that at the commencement of the hearing, the solicitor representing the appellants sought leave to rely on a further draft particular to ground 1 of the appeal, namely:

Failure by the Authority to consider the use of the discretion under s 473DC.

20    Leave was opposed by the Minister. The primary judge determined that leave should be refused on the following basis:

[6]    Leave was opposed by the first respondent on the basis that there was no notice whatsoever of this further particular to be relied upon. The first respondent submitted that the particular arose in response to reference by the first respondent in their submissions to the absence of any finding by the Delegate based on the second applicant’s demeanour during her interview with the Delegate. The proposed amendment was based on DPI17 v Minister for Home Affairs [2019] FCAFC 43 (“DPI17”) where the Full Court of the Federal Court held that the Authority erred in not inviting comment from an applicant in accordance with s.473DC of the Act. However, unlike in the case before this Court in DPI17 a transcript of the Delegate’s interview had been provided and the same inconsistencies were relied upon by both the Delegate and the Authority.

[7]    Having regard to the lateness of the application for leave and based on the lack of reasonable prospects of success of the draft particular and in circumstances where the facts in the case before this Court were markedly different from DPI17 (which was acknowledged by the applicant’s solicitor), leave to rely on the draft particular was refused.

21    The primary judge then proceeded to consider and reject the ground as pleaded, which amounted to an argument that the reasoning of the IAA concerning the wife’s sexual assault claim was so unreasonable as to amount to jurisdictional error. The submissions advanced on behalf of the appellants, as summarised by the primary judge, were to the effect that the IAA’s decision was unreasonable because it took into account delay in advancing the claim of sexual assault by the wife, and inconsistencies in the account of the alleged sexual assault given, which were to be understood having regard to the difficulties faced by a victim of such an assault and the difficulties arising for visa applicants at their entry interviews. The primary judge rejected this argument, finding that the cumulative effect of: (a) the wife’s failure to mention the claim until lodging her written statement in September 2015; (b) inconsistencies in her account of the sexual assault arising from a review of her written statement and comparing that with her interview; and (c) inconsistencies between the wife’s recounting of the sexual assault and the evidence given by her husband, provided sufficient justification for the IAA to have reached the conclusion that it did. Accordingly, the primary judge rejected the contention that the decision of the IAA was legally unreasonable.

5.    THE APPEAL

5.1    The arguments

22    The appellants acknowledge that the ground that they seek to advance is a new ground of appeal that was not permitted by the FCCA. Leave is required to advance it on appeal. The appellants advance five reasons that are said to provide a basis upon which this Court would grant leave to appeal: (1) the case sought to be advanced is different to the argued case below, and the appellants can only advance it if leave is granted; (2) the discretionary factors for the Court to consider typically require attention to the explanation for why the new case was not run below, the merit of the proposed ground, an assessment of the prejudices that may accrue to other litigants in the proceeding, third parties, and the public interest; (3) the fact that the primary judge refused leave below favours the appellants in the sense that they attempted to run the point, and favours the Minister in that he succeeded in persuading the Court not to permit the point to be advanced; (4) the impact of other considerations must be balanced against merit, the substantial prejudice to the appellants if the ground is not permitted, and the absence of any prejudice to the Minister; and (5) if the Court finds that it is in the interests of the administration of justice to grant leave, there is no limitation on power to prevent the Court from granting leave and remitting the matter to the IAA.

23    The Minister submits that the approach of the appellants is procedurally flawed. The FCCA explicitly refused leave to advance the ground now advanced. It is necessary for the appellants to demonstrate that in the exercise of her discretion the primary judge erred, but in the present application the appellants do not attempt to do so and concede that they cannot. Were error to be established, the appropriate course would be for the matter to be remitted to the primary judge to consider the case on the new basis and the new evidence upon which it was sought to be advanced. To adopt a different course would deprive the Minister the opportunity of a right to appeal to the Full Court, confining any avenue of appeal to an application for special leave to appeal to the High Court. Furthermore, the Minister submits that the proposed ground has insufficient prospects of success to warrant either the orders that the appellants seek (that leave be granted to advance the ground, and the appeal allowed) or those that the Minister contends are procedurally correct (that if the primary judge erred in refusing leave to raise the proposed ground, the matter be remitted to the FCCA for consideration).

24    In relation to the merits of the proposed ground, the appellants contend that the IAA fell into jurisdictional error for two reasons (emphasis added):

(1)    the IAA failed to consider whether to invite the wife to give new information in relation to the sexual assault under s 473DC of the Migration Act 1958 (Cth), and in so doing was legally unreasonable; or alternatively

(2)    if the Court finds that the IAA did so consider whether to invite the wife to give new information, by failing to exercise the power under s 473DC to invite the appellants to give new information, the IAA was legally unreasonable.

25    The appellants contend that the facts of the present case are relevantly indistinguishable from those in DPI17 v Minister for Home Affairs [2019] FCAFC 43; 366 ALR 665. They submit that the decision of the delegate was heavily influenced by the interview that she conducted with the wife and the husband.

26    In the application for leave to raise the ground on appeal, the appellants seek leave to read an affidavit sworn by their solicitor, which annexes the transcript of the interview. That leave is not opposed.

27    The relevant passage from the transcript was recorded on 5 June 2017 and is set out below. The evidence was given by the wife in the absence of her husband and their migration agent:

Interviewer: So you've said that there's some things that you'd like to tell me.

Interpreter: My husband has lots of problems with this political issue than other things one also. So, that's the reason I face so many problems. People come and ask the questions like that.

In 2012 in November, I thought somebody knocked the door, so I open. I thought my husband coming up from the shop, he's coming. At that time, two people came inside. They came inside, in front of my children. They behaved...

I thought my husband coming, so I couldn't see because two people came, and they very forcibly pushed my hand, and my son watching he's called "mother, mother", calling like that. They tried to behave like badly. So I also, very badly, I also, in fact like that. Motorbike sound outside heard.

So they ran away behind the house. There's a part way, so they ran away. After that, ten, fifteen minutes after that, my husband come. He's coming the same. He used to come that time, so he came that time.

After that my husband came, I was looks bad way standing over there, then I told my husband this happened to me, so don't tell anybody. I got the promise from him. You shouldn't tell anybody else. This is my life. I've done something else because of my children. I'm look my children only. I told my husband, you shouldn't tell anybody else. This is my personal thing, like that. So I explained to him that.

Up today, my husband didn't tell anybody else. I didn't tell lawyer also this, my rent agent also, but I want to tell you. I want to express my feelings. I want to tell you. That's why I told.

[crosstalk 00:04:33] I didn't mention that before that to you, please. That's why I told my husband to go out, because I can't tell like that. Please apologize for that. I didn't tell before that to you. We want to leave the respect way, but we couldn't. We have no way to stay there, so we came here.

So please apologize, ma'am.

Interviewer: That's okay. I understand. And I'm sorry. This must be hard for you to talk about.

Interpreter: If I can't stay here, just home because this incident come on and off to my mind. I want to forget that. That's the reason I start to go work.

Interviewer: Do you know the people that did that to you?

Interpreter: I have no idea who done that.

Interviewer: So you don't know whether they're still there or not?

Interpreter: No, I have no idea.

Interviewer: And did they say that they were looking for your husband? Or you don't know?

Interpreter: My husband's threatening and everything. Always this happen, continuously happen, but on that time they came home, and they used for me. That's the reason that they came on that day.

Interviewer: Did they say anything to you?

Interpreter: They didn't speak anything. They didn't ask anything. They knew I'm alone at the home. They knew that. That's the reason they came.

Interviewer: Thank you for telling me.

Interpreter: I never told any. The first interview also. I didn't mention anybody else this one. No.

My husband knows, but he didn't tell, mention to anybody else. He didn't tell to the lawyer also. My rent agent also mentioned. I didn't mention, too.

Interviewer: I know this is a sensitive issue for you, so if I can, I probably won't refer to it in any decision record that I write about it unless I have to.

Interpreter: My son, might have he known that the incident happened that time. He might have thinking still maybe. He sometimes he's asking me why mommy are sitting and thinking. Why we'll go out to come like that. He always call me like that. Maybe he knows something. He knows[inaudible 00:09:27] He have in his mind.

Interviewer: I don't mean to distress you further, but just so that we're clear. So you're saying that those two men sexually assaulted you. Is that right?

Interpreter: Promise. I promise to God.

Interviewer: I'm sorry. Was there anything else that you would like to say?

Interpreter: Yeah. My husband won't explain to this one. That's why I, he knows, he knows, but he can't explain to you things. That's why I told, I will tell. Didn't tell anybody else before.

Interviewer: Okay. Thank you. All right. We might pause the interview now, and I might just swap with you, so if you want to go out and take a break, I'll take you down to level 2, and I'll just chat with your husband for a couple minutes.

28    The appellants emphasise the passage where the delegate identifies that the wife is suffering distress in retelling the events of the alleged sexual assault. They submit that it is apparent that the delegate, having observed the demeanour of the wife, was able to consider the truth of her version of events by considering the “non-verbal, non-oral communication of information” from the wife to the delegate. The appellants submit that this communication was important to the delegate’s decision in accepting the wife’s claim of being sexually assaulted, and it is reflected in the delegate’s reasons where she said “…I accept that the [wife] was sexually assaulted based on her statements at the PV interview…” The term “statements” is said to encapsulate the non-verbal communications within the context of the interview. Further, they submit that these communications were sufficient for the delegate to form the view that, despite some inconsistencies in the evidence concerning the sexual assault, it nevertheless took place. Accordingly, the delegate said in her reasons (emphasis added):

At the PV interview, the [wife] was asked for further details about the event. The [wife] clarified that she did not know the two men who entered her house. She assumed they were members of the Karuna group and that they were there because of her husband. The [wife] further stated that they had come to her house because they knew she was alone. I note that this is not entirely consistent with her claims in her PV application where she claimed that members of the Karuna group came to her house and asked where her husband was.

29    The appellants submit that it is more than likely that the delegate was aware of all of the inconsistencies in the evidence, not only between the versions of the events told by the wife, but also between the evidence of the husband and the wife. All of the relevant material was before the delegate. Even so, after hearing from the wife, the delegate concluded that the alleged sexual assault had taken place. The appellants submit that in these circumstances, the failure of the IAA to consider whether to invite the wife to an interview, or to in fact invite the wife to an interview, amounted to jurisdictional error within the principles enunciated in DPI17.

30    The Minister submits that the facts in DPI17 are different and provide no basis for a conclusion that the IAA fell into jurisdictional error. In that case the delegate expressly referred to having regard to the demeanour of the appellant, unlike the present case. Furthermore, the discrepancies noted by the delegate in the evidence supplied in support of the claim of sexual assault were confined to timing and date, whereas the discrepancies observed in the present case were much more significant. The delegate in the present case appears not to have addressed those discrepancies, whereas the IAA did in reaching its conclusion. In addition, the Minister submits that caution should be exercised in elevating the role of demeanour above a forensic examination of the evidence. In this regard the Minister cites Fox v Percy [2003] HCA 22; 214 CLR 118 at [30] – [31], where Gleeson CJ, Gummow and Kirby JJ emphasised the caution to be taken when drawing conclusions about the veracity of the evidence of a witness based on demeanour.

31    In relation to materiality, the Minister was hesitant to submit that an unreasonable failure by the Minister to consider inviting, or to decide not to invite, the appellant to give new evidence in this instance would be an immaterial error, considering the pending application appeal before the High Court from the decision of Bromberg J in ABT17 v Minister for Immigration and Border Protection [2019] FCA 613. The Minister did draw attention to the fact that whilst the delegate found that the sexual assault occurred, she nevertheless rejected the wife’s claim for a visa because the delegate was not prepared to accept that there was a link between any form of persecution by the Karuna group and the sexual assault.

5.2    Consideration

32    It is convenient first to consider whether or not would be appropriate to grant leave to the appellants to advance the ground now raised on appeal.

33    In SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; 266 FCR 105 the Full Court (Besanko, Gleeson and Burley JJ) said:

[28]    The appellant acknowledges that proposed grounds (1) and (2) are new grounds raised for the first time on appeal. Thus, the proposed amended notice of appeal does not in substance engage with the decision of the FCCA but rather focuses on that of the delegate. The appellant requires the leave of this Court to rely on them. The relevant principles for deciding whether to grant out are set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48], as follows:

[46]    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] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38].

[47]    In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

[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.

34    The correct approach to the evaluation of the prospects of success of a ground proposed to be advanced on appeal for the first time is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] – [63] (Mortimer J).

35    I commence by considering whether or not the ground now raised clearly has merit. In this regard the primary contention advanced is that it was legally unreasonable either for the IAA not to consider inviting the wife to give new information relating to alleged the sexual assault, or if it did so consider, to fail to exercise the power under s 473DC to invite her to give new information, if it intended to diverge from the delegate in its finding regarding the sexual assault.

36    Section 473DC of the Act provides:

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.

37    In DPI17 Griffiths and Steward JJ at [35] – [39] identify the following relevant statements of principle concerning div 3 of Pt 7AA of the Act, and in particular s 473DC:

(1)    The powers conferred upon the IAA by this division are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 at [21] (Gageler, Keane and Nettle JJ).

(2)    The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b)”. These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (M174 at [24]).

(3)    A mere failure to consider the exercise of the power in s 473DC does not itself involve error, let alone jurisdictional error: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [41] – [43] (Thawley J).

(4)    The absence of a reference to the consideration or exercise of the discretion under 473DC does not of itself give rise to an inference that its exercise was not considered: see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [31] (French CJ and Kiefel J).

(5)    The following three steps are essential in determining whether an established failure to consider exercising a discretionary power was legally unreasonable: (a) identify the failure with precision; (b) examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and (c) evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense: CCQ17 at [51].

38    In DPI17 the Minister conceded that the IAA had failed to consider the exercise of power under s 473DC (at [44]), whereas that concession is not made in the present case.

39    In that case the appellant claimed before the delegate that he had been tortured and sexually assaulted by Sri Lankan officials . The delegate accepted that this had occurred on at least two occasions, but was not satisfied that if the appellant returned to Sri Lanka in the reasonably foreseeable further he would face a real chance of serious or significant harm after making adverse credit findings about his claims and evidence, in particular in relation to his claims that his brother had admitted to involvement with the LTTE. Upon referral to the IAA the appellant provided a written submission that addressed certain aspects of the delegate’s reasons, but did not address the sexual assaults, presumably, as the majority notes at [11], because the delegate had accepted the appellant’s claims on that matter. The IAA affirmed the delegate’s decision. The IAA also made adverse findings as to the credibility of the appellant’s claims and evidence. Importantly, the IAA did not accept that the appellant was a victim of sexual assault, in contrast to the decision of the delegate. The IAA recorded in its reasons that there were inconsistencies in relation to those claims as advanced in his written evidence compared with his interview with the delegate, and it pointed out what those inconsistencies were. The Full Court records the significance that the delegate in DPI17 afforded to some exchanges between the delegate and the appellant in his interview. Included within those exchanges are observations by the delegate that she had observed the appellant’s body language and his oral delivery and was “satisfied that it [being the sexual assaults] occurred as claimed”. The delegate also stated during the interview that she had noticed discrepancies between the written evidence and oral evidence but noted that they were not “major”, and that she was not putting a lot of weight on them.

40    On the facts of the case in DPI17 Griffiths and Steward JJ made the following further observations at [46] that are relevant to consideration of the present case.

41    First, that it would have been evident to the IAA from the transcript of the appellant’s interview with the delegate that the delegate’s acceptance of his claim as to torture and sexual assault was based primarily on the delegate’s assessment of the appellant’s demeanour and credibility when the matter was discussed in the course of the interview with the delegate.

42    Secondly, the IAA must have been aware of the delegate’s positive assessment of demeanour because it stated at [20] that it had listened to the interview.

43    Thirdly the majority said at [46(3)] (emphasis added):

In those circumstances, if the IAA was minded to come to a different determination on the central question whether it was satisfied that the sexual assaults had occurred, unless there was available to the IAA a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview and conduct its own assessment of his demeanour, it was legally unreasonable for the IAA to fail to consider whether or not it should exercise its powers under s 473DC.

44    Fourthly, demeanour is not the only aspect of a witness’s evidence which may lead to credibility findings. They may result from inferences drawn from probative evidence or material. But that was not the case in DPI17 because, while it was open to the IAA to come to a different view to the delegate on the significance of the inconsistencies, “it was legally unreasonable for the IAA to fail to consider whether or not to exercise its power under s 473DC in relation to those relevant inconsistencies”. That conclusion was reached in DPI17 having regard to the particular matters that emerged from the interview with the delegate, particularly the fact that the appellant was told by the delegate in the interview that the inconsistencies were not major, and they subsequently did not feature in the delegate’s reasons for refusing the appellant a visa: DPI17 at [47].

45    The appellants place much weight on factual similarities between the present case and DPI17. Certainly there are some. But in my view that case is sufficiently different in relation to the evidentiary basis available, to enable the IAA in the present case to form a contrary view to the delegate with respect to the credibility of the sexual assault claimant. In this regard, it is necessary to consider the reasoning given by the IAA (at [77] – [81]) for taking a different view to that reached by the delegate:

(1)    The wife did not mention until September 2015 that she had been the victim of a sexual assault in 2012, or even that she had been visited by members of the Karuna group, even though the assault took place shortly before the appellants’ departure from Sri Lanka. Whilst the fact that she had a male interpreter in her arrival interview in July 2013 might explain the absence of a reference to the sexual assault, it does not explain a failure to mention any assault or a visit from the Karuna group just prior to her departure.

(2)    There were a number of inconsistencies concerning the sexual assault between the wife’s written statement given in 2015 and the version of events that she gave during her interview with the delegate in 2017. The IAA details a number of these inconsistencies, being her evidence:

(a)    in her statement that she was sleeping at home and men broke the door down, as opposed to in the interview where she said that she heard a knock on the door, thought her husband was coming home, and opened the door;

(b)    in her statement that three men were involved, as opposed to in the interview where she said that there were two men;

(c)    in her statement that the neighbours came to help and the men left, as opposed to in the interview where she said that a motorbike sound was heard outside and the men ran away;

(d)    in her statement that the men asked her where her husband was, as opposed to in the interview where she said that the men said nothing; and

(e)    in her statement that she telephoned her husband and the neighbours took her to see him at his mother’s house, as opposed to in the interview where she said that 10 or 15 minutes after the men left, her husband came home.

(3)    There were discrepancies concerning the sexual assault between the husband’s statement given in 2015 and the oral evidence given by the wife, including, according to the husband’s version, that he was staying at his mother’s house and the next morning he learnt of the assault and decided that his wife and children should go to stay there also. In addition, according to his evidence, the assault took place after the men had pulled his wife outside and hit her on the head.

46    Having regard to the reasoning above, there are two factual distinctions between this case and DPI17 that are central to the Court’s finding in that case:

(1)    First, in DPI17, the delegate told the appellant in the interview that she accepted his account and that the inconsistencies between his previous statements were not “major”: DPI17 at [14]. This was a broad statement as to inconsistencies generally.

(2)    Leading on from the first point, the delegate then proceeded not to mention any inconsistencies in her decision at all in regards to his sexual assault claims: DPI17 at [11]. Thus, it was impossible to determine what inconsistencies the delegate was talking about when she told the appellant in the interview that she accepted them.

47    In those circumstances, the IAA did not have an independent evidentiary basis with respect to any inconsistencies it identified between the appellant’s previous statements because the delegate had, seemingly, accepted all possible inconsistencies (in relation to the sexual assaults) based on the appellant’s demeanour, and she gave no contrary indication in her reasons. The Full Court found that it was legally unreasonable for the IAA not to consider exercising its power under s 473DC in that situation. In the present case, I am unable to arrive at the same conclusion.

48    First, the discrepancies referred to above at [45], which in my view are supported by a comparison of the transcript of the interview against the statements given by the husband and wife, are not identified in the reasons of the delegate. In the excerpted passage of the delegate’s reasons set out above at [14], it may be seen that the delegate states that the wife’s oral evidence is that she did not know the two men who came to her house, but assumed that they were members of the Karuna group and that they had come to her house because they knew she was alone. It was only that aspect of her evidence that the delegate considered not to be “entirely consistent” with her earlier evidence. The delegate does not address the other discrepancies.

49    Contrary to the submission advanced by the appellants, I do not consider that it can be inferred that the delegate was conscious of and had the other discrepancies in mind, being the ones identified by the IAA, when she drew the conclusion that the version of events given by the wife in the interview was not “entirely consistent” with the version of events given in her statement. It is apparent from the IAA’s more detailed analysis of the evidence that there were a number of other significant discrepancies. The appellants submitted that, for the other discrepancies that went unmentioned by the delegate to be pivotal against the appellants on appeal, they would need to be considered persuasive enough to negate the relevance of the wife’s demeanour and apparent credibility at the interview, and mean that the IAA did not have to consider exercising its discretion under s 473DC. The effect of that submission would be to hold that there is a broad duty on the IAA to consider inviting an applicant for a visa, for an additional interview, before finding adversely against him or her, in nearly every circumstance where an applicant’s demeanour or credibility at an interview with the delegate could possibly have resulted in a contrary decision by the delegate. That submission must be rejected. Plainly, it will be a question of fact in each case whether it was legally unreasonable to fail to consider interviewing an applicant.

50    Secondly, unlike in DPI17, the reasons for the delegate accepting the wife’s claim of sexual assault, despite the single discrepancy identified, is not explained in her reasons, and a review of the transcript of the interview does not clarify why. Demeanour is not the only potential reason for taking that view. One is the perfectly correct approach of a decision maker, when hearing the evidence from a victim about a traumatic event, to make allowances for minor inconsistencies. Another may be that the demeanour and body language of an alleged victim is such that that the decision-maker is persuaded of the authenticity of the account. Another may be that the delegate overlooked discrepancies that the IAA perceived. In my view, the transcript of interview does not yield the conclusion, which the Full Court drew in DPI17, that the demeanour of the witness was sufficiently persuasive to overcome any discrepancies noticed.

51    Thirdly, the discrepancies noted by the IAA in the present case are of a more fundamental and significant nature to the wife’s version of events than was the case in DPI17.

52    Furthermore, even if, contrary to my view, the IAA was obliged to consider exercising its discretion under s 473DC in the present circumstances, the appellant has failed to show that it did not do so. The appellants ask for an inference to be drawn that the IAA failed to consider the exercise of its powers to allow further oral evidence from the wife, due to the fact that there is no express acknowledgment of such consideration in the IAA’s reasons. However, it was under no obligation to give reasons for its exercise or non-exercise of any procedural power, and the omission of any reference to the discretion under s 473DC in the IAA’s reasons cannot support the drawing of an inference that the exercise of the discretion was not considered: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 93 ALJR 1091 at [40]; DPI17 at [44]. The reference by the appellants to the more detailed reasons given in [10] – [12] of the reasons (where the IAA rejects the appellants’ application for new information regarding the sexual assault claim to be considered) does not provide a secure basis upon which such an inference may be drawn.

53    For these reasons, I consider that the prospects of success of the proposed ground of appeal have insufficient merit for it to be in the interests of justice to permit it to be allowed. This conclusion is sufficient to dispose of the application, and the appeal, adversely to the appellants. However, in deference to the further arguments raised by the parties in relation to the exercise of my discretion as to allowing the proposed ground of appeal to proceed, I address them briefly below.

54    The Minister submits that because the appellants tried and failed to obtain leave to raise the same ground before the primary judge, the only avenue for appeal is for the appellants to seek leave to appeal from that interlocutory decision pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The appellants concede that they could not succeed in such an appeal on House v The King [1936] HCA 40; 55 CLR 499 grounds, not least because the appellants did not tender the transcript of the delegate’s interview of the wife in the FCCA. The Minister submits that in the absence of an application for leave to appeal within s 24(1A), the appeal should be dismissed.

55    Subsection 24(1A) of the FCA Act separately confers upon this Court the power to hear appeals from an interlocutory judgment of the FCCA within s 24(1)(d), subject first to the grant by this Court of leave to appeal. Nothing in the language of either provision indicates that the power of the Court in the exercise of its jurisdiction under s 24(1)(d) is constrained by the operation of s 24(1A) in every case where an application is made and refused in the FCCA for leave to rely on that ground. I do not accept the Minister’s submission that the existence of s 24(1A) means that by necessary implication the Court has no power to grant leave to allow the same ground to proceed for consideration ground on appeal.

56    Section 28 of the FCA Act sets out the means by which the Court may approach an appeal and the course open to the Court on appeal. It enlivens a wide range of powers. These include a power to give such judgment or make such order as, in all the circumstances, the Court thinks fit: s 28(1)(b). In exercising those powers, the Court must always have regard to the interests of justice, including “the correction of error or injustice, the need of the parties for finality in the matter, the public interest in finality of litigation and the fair and open administration of justice, and the requirement in s 24(1) to hear and determine the appeal”: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466 (Weinberg, Bennett and Rares JJ) at [108]. In addition, subsection 28(4) provides that an interlocutory order from which there has been no appeal does not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just.

57    In Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374, White J in similar circumstances expressed the view that, “strictly speaking”, the appellant should appeal against the refusal of a grant of leave to advance a further ground (at [31]). In that case, his Honour then nevertheless proceeded to consider the merits of the proposed ground, on the basis that the Minister accepted that in the event the merits were sufficiently established, it would be appropriate for the Court to give effect to its conclusion in the same way as would have been the case had the FCCA judge granted the appellant leave to agitate the ground (at [32]). His Honour allowed the appeal on the basis of this new ground and one other. I do not understand his Honour in Nguyen to be expressing the view that the discretion to grant leave to appeal on a ground raised on appeal cannot be exercised in circumstances where the primary judge determines in an earlier interlocutory decision that it may not be raised. His Honour’s view that the appellant should, strictly speaking, have appealed against the interlocutory refusal was of course correct. However, it does not indicate that by failing to do so the appellant was not permitted to seek leave to advance the ground in the appeal itself.

58    In SZRHL v Minister for Home Affairs [2019] FCA 785 Rangiah J considered, without deciding, that it may be that s 24(1A) requires an appellant to seek leave to appeal in these circumstances, but as the point was not pressed by the Minister, he proceeded as if the appellants had made an application for leave to appeal.

59    In both of these cases it is apparent that the Court took the view that it was procedurally preferable to seek leave under s 24(1A), but not beyond power to adopt the present approach. I respectfully agree with that approach.

60    These matters indicate that the question of whether an appellate court should exercise the discretion to grant leave to advance a particular ground of appeal is to be determined on a case by case basis, having regard to the question of whether or not it is in the interests of the administration of justice to grant leave. As I have mentioned in [33] above, some of the matters to take into account are identified in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] – [48] (Kiefel, Weinberg and Stone JJ). The procedural hinterland leading to the application for leave will also be material, including, as the Minister now submits, whether the applicant has circumvented other more appropriate procedural steps.

61    For the reasons given above, one matter that is relevant to the exercise of the discretion is that the appellants ought to have raised the point in an application for leave to appeal from the decision of the primary judge. That tends against the appellants, because by adopting the present course the appellants circumvent the filter of the requirement under s 24(1A) for leave to appeal. Another, which is related, is that the Minister is deprived of the benefit of the correct ruling by the primary judge and of the ability to first have the argument ventilated before the primary judge rather than for the first time on appeal, which means there would be no automatic right of appeal if the ground were allowed and upheld in this Court. These matters, which favour the Minister, must be considered against the background that the Court on appeal must always have regard to the interests of justice. One factor favouring the appellants is the prejudice that they would suffer in the event that they have a meritorious ground of appeal that they could not advance. Another is the relative lack of prejudice to Minister, subject only to the first two points that I have mentioned. Taking these matters into account, and having regard to the view I have taken as to the appellants’ prospects of success, in my view the balance remains firmly against the grant of leave to the appellants to rely on the new ground.

62    Accordingly, the application for leave and the appeal must be dismissed with costs.

Associate:

Dated:    25 May 2020