FEDERAL COURT OF AUSTRALIA

BXZ16 v Minister for Immigration and Border Protection [2020] FCA 750

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant be granted leave to file an Amended Notice of Appeal in the form annexed to the affidavit of Christian Hearn affirmed 11 February 2020.

2.    The appeal be dismissed.

3.    The Appellant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

1    In this proceeding the appellant, a nineteen year-old citizen of Sri Lanka of Tamil ethnicity and Christian faith, appeals from the judgment of the Federal Circuit Court (BXZ16 v Minister for Immigration and Border Protection [2018] FCCA 2833) which dismissed his application for judicial review of a decision of the Immigration Assessment Authority (the IAA) made 17 June 2016. The IAA had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the appellant a Safe Haven Enterprise visa (the protection visa).

2    Pursuant to a proposed amended notice of appeal the appellant alleges that the IAA fell into jurisdictional error and that the Federal Circuit Court erred in not so finding. The ground in the proposed amended appeal was not raised before the Federal Circuit Court and the appellant requires leave before he may advance a ground raised for the first time on appeal. For the reasons I explain, it is appropriate to grant leave to advance the fresh ground but to dismiss the appeal.

The background facts and procedural history

3    The appellant first arrived at the Cocos Islands as a twelve year old on 29 April 2013, by boat and without a visa, together with an uncle and aunt, their son and another cousin. Following the aunt and uncle being interviewed by the officers of the Department of Immigration and Citizenship (the Department) in an “enhanced screening process” the appellant and the rest of the family were returned to Sri Lanka.

4    Less than two months later, the appellant returned to Australia by the same means, this time unaccompanied, arriving on 19 July 2013. On 12 August 2013 he was interviewed by an officer of the Department in an Irregular Maritime Arrival and Induction Interview at which time he said that he had when he returned to Sri Lanka he “was arrested and kept for one day for trying to come to Australia”.

5    On 23 September 2015, by which time he was 14 years old, the appellant applied for a protection visa and provided a statement setting out the basis of his claim for protection. His initial claims for protection can be summarised as set out below. It should though be kept in mind that the proposed ground of appeal alleges that the IAA erred in its consideration of the nature and risk of the particular harm which the appellant would face upon return to Sri Lanka, and not on the events which the appellant claims led him to flee Sri Lanka in the first place:

(a)    In or about March 2011 the appellant was involved in an incident at school. While playing ‘tip and run’ the appellant tipped a Sinhalese boy on the shoulder and the other boy fell and hit his head on a stone. The appellant was blamed and was said to have pushed the other boy over, who was badly hurt and fell into a coma.

(b)    Soon after the incident the appellant was sent to stay at his aunt’s place in Colombo, 140 km from where he lived, because his parents became worried for his safety and thought the family of the other boy would hurt him in revenge. It is common for people to take revenge in Sri Lanka.

(c)    Four or five times during 2011, including in July 2011, the boy’s parents went to the appellant’s parents’ house and threatened that “we will kill your son” or do the same thing to your son that he did to my son (i.e. put him in a coma). His mother told the boy’s parents that he was studying in India.

(d)    In August 2011 the boy’s parents threatened the appellant’s father. His mother told him the boy’s parents asked where the appellant was, demanded that the appellant’s parents “bring him here”, and threatened to “do something to your husband”. The appellant’s father was detained by the police from about August 2011 until December 2011 as he refused to take the appellant to the police station for questioning. The appellant’s mother then paid for some medical treatment for the boy and the appellant’s father was released.

(e)    The boys’ parents came to the appellant’s house a few times in 2012 and made further threats. They were about to strike his father and his parents called the police to help them negotiate with the other family.

(f)    One night in 2012 a Sinhalese man came to the appellant’s parents’ house and demanded his father’s motorbike. His mother refused to give him the motorbike and asked him to come back when her husband was home. The Sinhalese man broke a window in an unsuccessful attempt to gain access to the house, but then left. Later that evening, about 10-14 Sinhalese speaking people came to the house, some of whom were relatives of the boy in the coma. They broke down the front door and came inside and tried to hit his mother. His mother was there holding his hand, holding his sister’s hand in other hand and had a baby on her back. The intruders said they would bash the appellant, and that they would do something to him. The appellant understood that to mean that they were threatening to kill him. The appellant and his family escaped through the back door, and hid under a bed in the neighbour’s house. The appellant’s mother called the police and the Sinhalese men ran away when they heard sirens.

(g)    When the appellant and his family returned to their home the following day, they saw that everything was broken, and some items and money had been stolen. Later that day the appellant’s father arrived home from his work as a taxi driver some distance away. He was worried and wanted the appellant to have a safer life. He told the appellant he would try to organise for him to go to Australia.

(h)    The appellant’s grandfather was a witness to the attack at the house, and he gave a statement to the police. However, his grandfather died about six months later and the police would not continue the case without his evidence.

(i)    The appellant and his family moved to a house of a friend of his father and stayed there for about one month, and then moved to another house in a new town. When the appellant’s father went to their old home, the neighbours told him that the attackers had again returned looking for them. The appellant’s father was very worried about the appellant being attacked as a witness to the crime.

(j)    Shortly thereafter the appellant’s father sent the appellant to Colombo by bus with his uncle, who was to take him to Australia to be safe. They made it to Australia but they were sent back and the appellant then went to live with his family at a new house in a third town.

(k)    Upon the appellant’s return to Sri Lanka, his father told him he needed to try to go to Australia again as he would be safe in Australia. His father took him to Colombo and after staying in a hotel for some time his father took him to a boat. He and his father were both crying.

(l)    The other boy’s father and another person came to the appellant’s family’s house in February 2013 and June 2014 asking the whereabouts of the appellant. His mother told them he was in India. The other boy’s father and other people also came to the appellant’s family’s house twice in July 2014. In August 2014 the appellant’s father received a threatening telephone call and he was told: “You can be happy for a while, but soon we will find your son and kill him and your happiness will end”.

(m)    The appellant fears that if he is returned to Sri Lanka the family of the boy who was in a coma will kill him.

(n)    The appellant’s mother told the appellant that the other boy’s parents have money and influence, and because the appellant’s family is Tamil and Christian, they do not have influence. The police put pressure on his family because they are Tamil, including by not properly investigating the attacks on them, discriminating against them and detaining his father without charge for five months on a false allegation of his father possessing a bomb. He fears he will be targeted for these reasons as well, even though the incident which left the other boy in a coma was just an accident while playing.

6    On 5 May 2016 a delegate of the Minister decided to refuse the appellant’s claim for a protection visa. The delegate accepted that the appellant was involved in an incident with a Sinhalese boy at school, and that the boy was injured to some degree, but did not accept the appellant’s account that the boy was badly injured, or that the appellant and his family were targeted, threatened and harassed by the other boy’s family afterwards. The delegate found that the appellant’s claims to fear persecution if returned to Sri Lanka were not credible and that the appellant had no genuine fear of harm on account of the claimed threats. The delegate also rejected the appellant’s claim that he feared persecution by Sri Lankan authorities as a failed asylum seeker who had twice been returned to Sri Lanka. Thus the delegate found that the appellant was not a person in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act).

The Immigration Assessment Authority decision

7    The delegate’s decision was referred to the IAA.

8    On 8 June 2016 the appellant’s representative lodged submissions and a further statement by the appellant dated 8 June 2016 in support of the visa application which proffered various explanations aimed at addressing the delegate's findings as to the credibility of the appellant’s claims about the asserted incidents or events in Sri Lanka. It is unnecessary to set out those explanations when the proposed ground of appeal does not concern the IAA’s findings in relation to the credibility of those claims, and instead focuses on the IAA’s consideration of the risk of harm the appellant would face on return to Sri Lanka because he was a child and had twice illegally departed the country.

9    On 17 June 2016 the IAA affirmed the delegate’s decision not to grant the appellant a protection visa. The IAA decision may be summarised as follows:

(a)    It was plausible that the appellant was involved in a schoolyard accident during a game of ‘tip’, but the IAA did not accept the claimed consequences which the appellant said occurred as a result. While the IAA accepted that the appellant may not have known the other boy’s name of the time of the accident he was expected to know his name now given the claimed seriousness of the incident and the fact that his mother had given him a considerable amount of information about the boy’s injury and his family’s response.

(b)    The IAA accepted that the appellant went to stay with his aunt in Colombo immediately after the incident, but did not accept that he would have been sent there without some explanation why he was going there so quickly and why he would not ever be returning to school.

(c)    A “promissory note” in evidence did not in fact demonstrate that payment was made by the appellant’s family to the parents of the other boy, but instead related to a loan made by the appellant’s father to another person who lived in the same street. The IAA did not accept that the injured boy’s parents who allegedly demanded a payment to settle a dispute would sign a promissory note to confirm that they were borrowing the money and were obliged to repay it in the future.

(d)    It was more likely that the accident at school was minor and did not result in the boy being in a coma, that the appellant was sent to Colombo to avoid the possibility of angry repercussions from the boy’s parents immediately after the incident and he returned to live with his family after a period of time because his mother deemed it safe for him to do so.

(e)    The IAA did not accept that the boy was in a coma, that his parents demanded money from the appellant’s parents, that the appellant’s parents paid money to the boy’s parents in December 2011 or in October 2015 or at all, that the boy’s family and friends had made threats against the appellant by visiting his family home, or by telephone to his father or mother, or when his mother was seen in the street.

(f)    Given that the IAA did not accept that the boy was in a coma or that his family visited the appellant’s home or made threats against the appellant for his involvement in that accident, it did not accept that false allegations were made by the boy’s family in 2011 against the appellant’s father. It did not accept that the appellant’s father was detained on false allegations and was released five months later without any charges being laid.

(g)    The IAA preferred the appellant’s “spontaneous” account at the entry interview of the claimed house “break in” incident in October 2012, to that made in his statements and in the protection visa interview. In particular, at the entry interview the appellant said he was not at home when the break-in occurred because he was at school and that the offenders injured his father’s head. In his first statement he said he was at home in the evening with his mother and siblings but his father was not at home because he was working in Colombo, and he did not know how many were involved. It was implausible that the appellant could not remember whether he was present on a night when his house was broken into by many people, he and his mother were threatened, which caused the family to flee by the backdoor. The IAA accepted that a break-in occurred at the appellant’s house but did not accept that he or his mother were threatened during the break-in or that the break-in was related to the schoolyard accident.

10    Relevantly to the proposed ground of appeal, the IAA considered the appellant’s claim that he faced persecution if returned to Sri Lanka on the basis that he is a failed asylum seeker and had twice illegally departed from Sri Lanka (at [69]-[83]). The IAA noted that the appellant illegally departed Sri Lanka by boat twice, in breach of ss 34 and 45(1)(b) of the Sri Lankan Immigrants and Emigrants Act (the I&E Act). The IAA took into account ‘country information’ from the Department of Foreign Affairs and Trade (DFAT) and described in detail the entry process which applies to returned asylum seekers. The IAA stated that such returnees are arrested and detained at the airport or a nearby prison before being transported to the Magistrates’ Court, and that such prisons do not meet international standards due to overcrowding, poor sanitary conditions and lack of resources. It noted that returnees who were passengers on people smuggling ventures were not subject to custodial sentences and that instead fines are issued which vary in size on a case-by-case basis and can be paid by instalment.

11    In relation to the applicant’s particular circumstances the IAA however concluded that it was unlikely that he would be charged. It said (at [77]-[78]):

The applicant was returned to Sri Lanka in May 2013 and claimed that he was held overnight but released the next day, without charge, after his father arrived and spoke to someone. The applicant was a minor then and is still a minor. There is no basis for expecting that he would be treated any differently upon his return to Sri Lanka for a second time. His representative submitted that the applicant could be imputed with an “anti-Sri Lankan” opinion because he has left Sri Lanka twice. Given his young age, I do not accept that this would be the case.

Given the applicant’s illegal departure from Sri Lanka and having considered the country information above, I accept that, upon his return to Sri Lanka, the applicant could be charged under the I&E Act. I note that he was not charged the first time and given he is still a minor, it is unlikely that he would be charged next time either. If the applicant arrives over a weekend or long weekend, there is a chance that he may be held, for a short time, at a nearby prison until he appears before a magistrate.

12    The IAA found that the I&E Act was not discriminatory on its terms and that a generally applicable law will not ordinarily constitute persecution because the application of such a law does not amount to discrimination (at [80]). It decided that the appellant’s likely treatment pursuant to the I&E Act did not amount to persecution for the purpose of ss 5H(1) and 5J(1) of the Act, concluding (at [82]) that:

On the basis of the information from DFAT, it is most likely that the applicant would be issued a fine and be released or, if he pleads not guilty, he will be released on his own personal surety. The applicant was a passenger on a people smuggling vessel who, although he departed illegally, has not claimed to have been involved in organising or facilitating people smuggling. In these circumstances, I find that the applicant would not be subject to any custodial sentence but that he would be fined for his illegal departure, which I am not satisfied amounts to serious harm. I am not satisfied that the applicant faces a real chance of persecution on the basis of being a Tamil asylum seeker who twice departed Sri Lanka illegally, now or in the reasonably foreseeable future.

13    In relation to complementary protection, the IAA found (at [85]-[94]) that the treatment which the appellant would face upon return to Sri Lanka as a failed asylum seeker and a person who has committed an offence under the I&E Act, including a possible short period of detention in poor prison conditions while waiting to appear before a Magistrate, would not amount to significant harm as defined under the Act. Differently to the earlier assessment of the applicant’s status as a refugee, the IAA’s analysis proceeded on the basis that the appellant would be charged upon arrival in Sri Lanka, but said that the appellant would face a fine rather than a custodial sentence and that there was no risk that he would face any ‘significant harm’ for the purpose of s 36(2)(aa) of the Act.

The Federal Circuit Court decision

14    On 22 July 2016, the appellant filed an application for judicial review of the IAA decision in the Federal Circuit, setting out seven grounds. On 5 October 2018 the primary judge found none of the grounds established and dismissed the application. It is unnecessary to set out the grounds or the primary judge’s reasons for dismissing the application when there is no challenge to the primary judge’s reasons. The proposed amended appeal raises only a fresh ground of appeal, not raised below.

the Appeal to this Court

The Notice of Appeal

15    The appellant appealed from the decision of the Federal Circuit Court by a Notice of Appeal filed on 26 October 2018, which raised the following two grounds of appeal:

1.    The Federal Circuit Court erred in failing to find that both respondents and their delegates acted irrationally or unreasonably and unlawfully by taking into account irrelevant considerations and failed to take into account relevant considerations without good cause and reason to the exclusion of others.

2.    The Federal Circuit Court erred in failing to find that both respondents and their delegates failed to consider the consequences of the data breach by the First respondent alerting the Sri Lanka authorities the appellant had managed to twice departed [sic] Sri Lanka illegally which is unprecedented, that he will be punished severely on his return to receiving country. The Second Respondent engaged in jurisdictional error at [71] by failing to consider and apply the High Court’s judgment in Minister for Immigration v SZSSJ at [91] concerning its assessment of the claims based on the illegal release of the appellant’s personal private information by the department and failed to consider those claims.

16    On 13 February 2019, the appellant’s litigation guardian appointed a new solicitor to act for the appellant, who was at that point still a minor. The hearing of the appeal was delayed for reasons relating to the appellant’s legal incapacity, and while the parties awaited judgment in a potentially relevant proceeding before the High Court. Upon the High Court handing down decision in that proceeding the appeal was listed for hearing on 18 February 2020.

The application for leave to amend

17    On 11 February 2020, the appellant filed an interlocutory application seeking leave to amend the Notice of Appeal to raise a new ground, not raised before the Federal Circuit Court. The appellant requires leave to do so.

18    In an affidavit filed in support of the application, the appellant’s solicitor argued that leave to advance the fresh ground should be granted because:

(a)    the appellant is seeking asylum and was a child when he filed the notice of appeal. He is a vulnerable person on account of his youth and having arrived in Australia unaccompanied by any family members;

(b)    the proposed amended ground of appeal arises, in whole or in part, out of the same facts and matters or substantially the same facts and matters as those already relied upon by the appellant before the delegate, the IAA and in the Federal Circuit Court to support his contention that the IAA was in error;

(c)    the appellant’s proposed amended ground has merit; and

(d)    there is no unfairness to the respondents by the proposed amendment.

19    The Minister opposed a grant of leave, contending that the appellant failed to provide any explanation as to why the ground was not raised before the primary judge. The Minister argued that a grant of leave would effectively turn the Court into a trial rather than an appellate court, denying the Minister a right of appeal he would have had the ground been raised below, citing Han v Minister for Home Affairs [2019] FCA 331 (Bromwich J) at [4]-[21].

20    The relevant principles for the grant of such leave are well established. An appeal court has a discretion to allow an appellant to raise new grounds of appeal where the court considers that it is expedient in the interests of justice to entertain the issue and where the proposed new ground could not possibly have been met by calling evidence in the hearing below: Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497. The court is more likely to permit a new ground to be advanced on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319 (Mason J); Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 317 ALR 665 at [126]-[131] (Tracey, Gilmour, Jagot and Beach JJ).

21    Those principles were discussed in the context of migration appeals in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] (Kiefel, Weinberg and Stone JJ) and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166] (Madgwick J, with whom Conti J agreed). In my view, when determining whether it is expedient in the interests of justice that leave to advance a fresh ground be granted in such cases, it is important to take into account the serious consequences that may attend a wrongful refusal of a protection visa: Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ); CGA15 v Minister for Home Affairs [2019] FCAFC 46 (CGA15) at [36] (Murphy, Mortimer and O’Callaghan JJ).

22    I accept the Minister’s contentions that the appellant was legally represented before the Federal Circuit Court; that he did not provide a compelling reason why the proposed new ground was not argued before the primary judge; and that if the new ground is upheld by the Court sitting on appeal but as single judge, the Minister he will be denied appellate review unless he can obtain special leave in the High Court. Those considerations favour refusing leave to advance a new ground.

23    However, what is at stake in the present case is the lawfulness of the exercise of public power affecting the interests of an individual, and the considerations that inform whether leave should be granted to advance a new ground of appeal in a public law case are not necessarily the same as in a case between private parties. While the fact that the appellant was legally represented below weighs against a grant of leave, a new ground of appeal may be allowed even where the proceedings below have been conducted with legal representation and all that can be said by way of explanation was that its significance may not have been apparent to the appellant’s lawyers in the hearing below: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J), endorsed by the Full Court in CGA15 at [37].

24    In my view other considerations favour a grant of leave to amend.

25    First, although the proposed ground of appeal is new, it bears some correlation to grounds six and seven before the primary judge. Second, the new ground could not have been met by calling evidence below. Third, the addition of the new ground is coupled with abandonment of the previous grounds and its addition will not add to the length of the hearing. Fourth, the appellant was a minor when the application was made to the Federal Circuit Court and his ability to articulate all of the claims he wished to make was thus limited. Fifth, the merits of the proposed new ground are important in the consideration of whether to grant leave. In this regard what is required is to decide whether the proposed ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”. The Court should not descend into a full consideration of the arguments for and against the ground so as to decide the ground. Considered at that level the proposed new ground is reasonably arguable in my view.

26    I consider it expedient in the interests of justice to grant leave to advance the new ground of appeal, notwithstanding that on hearing the appeal I concluded that the appeal as amended should be dismissed.

The Amended Notice of Appeal

27    The Amended Notice of Appeal alleges the following ground and particulars:

The FCC erred in failing to find jurisdictional error in the decision of the IAA in circumstances where the IAA made unreasonable and/or irrational and/or illogical findings of fact and/or findings of fact not supported by evidence and failed to address the full integers of the Appellant’s claim in relation to the prospect and degree of harm to the Appellant upon his return to Sri Lanka as a failed asylum seeker, who had unlawfully departed Sri Lanka twice contrary to the provisions of the Immigrants and Emigrants Act 1948 (Sri Lanka) (I & E Act), and who was a child.

Particulars of jurisdictional error by IAA

a)    The IAA’s findings (AB213 [39]-[40]; AB219 [69]-AB221 [83]) amount to inconsistent findings of fact in relation to the probability of the occurrence of harm and degree of harm to the Appellant if returned to Sri Lanka.

b)    To the extent that the IAA found that the Appellant would be released without being charged with an offence under the I&E Act on his return having departed unlawfully twice (AB220 [77]), or would be unlikely to be charged (AB220 [78]), the findings are unreasonable and/or illogical and/or irrational and/or not supported by evidence.

c)    The finding that any period of detention or imprisonment would be brief or short was unreasonable and/or illogical and/or irrational and/or not supported by evidence (AB221 [81]; AB222 [89]-[90]).

d)    The findings that the Appellant “would not be the subject of any” and “will not face a” custodial sentence are unreasonable and/or illogical and/or irrational and/or without evidence (AB221 [82]; AB223 [91]).

e)    The IAA failed to take into account relevant considerations, namely the probability and gravity of the consequence of the feared harm - that the Appellant was at risk of significant harm, being detained as a child in prison with adults, including convicted adult prisoners (elevating the Appellant’s vulnerability in relation to the other generalised poor conditions of prison, and the risk of being a victim of violence, and exacerbating any length of custody). (See AB128-129).

Particulars of error by FCC

a)    The FCC erred in failing to detect the unreasonable and/or irrational and/or illogical factual findings and/or factual findings without evidence in the decision of the IAA: see AB241-243 [22]-[25].

b)    The FCC erred in failing to detect the IAA’s error in not considering the full integers of the Appellant’s claim.

c)    The FCC erred at AB252 [53] in finding that the IAA “considered the circumstances and consequences of the Appellant’s detention and the fact that he was a minor and, therefore, undertook a qualitative assessment of whether the applicant would suffer significant harm because of his imprisonment.”

28    The ground alleges:

(a)    unreasonableness, irrationality and illogicality in fact-finding by the IAA, focussing on the IAA’s consideration of the harm the appellant would face on return to Sri Lanka as a failed asylum seeker who had twice unlawfully departed the country; and

(b)    that the IAA failed to consider all of the integers of the appellant’s claim as to the prospect and risk of the harm which he would face as a failed asylum seeker who had twice unlawfully departed Sri Lanka and who was a child.

Particular (a) - Allegation of inconsistent findings of fact

29    To establish illogicality and irrationality in the IAA’s fact finding the appellant relies, first, on an asserted inconsistency in the IAA’s findings in relation to whether on return to Sri Lanka the appellant would be charged under the I&E Act . The IAA said (at [77]-[78]):

77.    The applicant was returned to Sri Lanka in May 2013 and claimed that he was held overnight but released the next day, without charge, after his father arrived and spoke to someone. The applicant was a minor then and is still a minor. There is no basis for expecting that he would be treated any differently upon his return to Sri Lanka for a second time…

78.    Given the applicant’s illegal departure from Sri Lanka and having considered the country information above, I accept that, upon his return to Sri Lanka, the applicant could be charged under the I&E Act. I note that he was not charged the first time and given he is still a minor, it is unlikely that he would be charged next time either. If the applicant arrives over a weekend or long weekend, there is a chance that he may be held, for a short time, at a nearby prison until he appears before a magistrate.

(Emphasis added.)

30    The appellant argues that the IAA found (at [78]) that it was unlikely that the appellant would be charged under the I&E Act if returned to Sri Lanka, which it submits stands in contradiction to other findings which the IAA made, including the following:

(a)    the appellant “would be identified by the authorities as having twice departed Sri Lanka illegally...arrested by the police at the airport [and]...transported to the closest Magistrates Court at the first available opportunity, after which custody and responsibility will shift to the court or prison services and at this point the Court will determine the next steps for each individual” (at [74]);

(b)    “those arrested can remain in police custody at the CID Airport Office for up to 24 hours and that in the event a magistrate is not available before this time, for example due to a weekend or public holiday, those charged may be held at a nearby prison”(at [75]);

(c)    “no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. In such cases, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment” (at [76]); and

(d)    “I have also accepted that the applicant will be charged with an offence under the I&E Act, that he will not face a custodial sentence and that he could be fined for his illegal departure” (at [91]).

31    The appellant contends that the inconsistency of the findings meant that it is unclear whether or not the IAA concluded that the appellant would be charged under the I&E Act if returned to Sri Lanka, which he submits undermined the IAA’s conclusions in relation to the risk of harm which the appellant faces. The appellant argues that it is unclear which findings of fact truly operated on the IAA’s mind which supports a conclusion that this aspect of the decision was unreasonable, illogical, irrational and without evidence. He submits that this inconsistency is substantial and can be distinguished from asserted errors which require reading a decision “with an eye keenly attuned to error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 279 (Brennan CJ, Toohey, McHugh and Gummow JJ) and at 288 (Kirby J).

Consideration

32    For the appellant to succeed in establishing that the IAA’s decision is vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, the appellant must show “extreme” illogicality or irrationality “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”: see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [47] (Griffiths, Perry and Bromwich JJ) citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [148] (Robertson J); SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84] (McKerracher J, with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [52] (Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that the overarching question is whether the decision was affected by jurisdictional error: ARG15 at [47] citing SZRKT at [151]; BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] (Beech-Jones J) and the cases referred to therein.

33    I am not persuaded that the inconsistency in fact-finding on which the appellant relies is sufficient to show jurisdictional error.

34    First, on a fair reading of its reasons, the IAA found it was unlikely that the appellant would be charged under the I&E Act for illegal departure from Sri Lanka (at [77]-[78]). The IAA accepted that the appellant “could” be charged, but considered it to be “unlikely that he would be charged next time either” given that he was not charged the first time he was returned after departing illegally as a minor and he was also a minor when he departed the second time.

35    On a fair reading the finding (at [91]) that the appellant “will” be charged should be understood as poor use of language rather than the IAA denying what it had earlier said at [78] – that he “could” be charged but it was unlikely. The IAA’s reasons in this regard are not entirely harmonious but, on a fair reading, it assessed the risk of harm the appellant faced:

(a)    if he was not charged – in which case he might be held overnight and released the next day (at [77]) or if he arrived over a weekend or long weekend he might be held for a short time in a prison (at [78]), or

(b)    if he was charged – in which case if he pleaded guilty he would be held for a short time and issued a fine and released, or if he pleaded not guilty he would be held for a short time and released on his own personal surety (at [82] and [91]).

36    Second, even if the asserted inconsistency be accepted, it falls a long way short of demonstrating that the decision was unreasonable by reason of that aspect of its reasons: Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 367 ALR 465 at [85] (Besanko, Banks-Smith and Colvin JJ); Pennie v Minister for Home Affairs [2019] FCAFC 129 at [24] (Davies, Derrington and Colvin JJ). Under either scenario the IAA considered the appellant might face a short period of detention and no ongoing custodial sentence. In the IAA’s view the two scenarios differed only in that, if the appellant was charged, he would be required to pay a fine on top of a short period of detention overnight or over a weekend.

37    Therefore, even if it is accepted that the IAA made inconsistent findings about whether the appellant would be charged under the I&E Act, the IAA assessed the risk of harm the appellant would face on the more serious of the two possible outcomes; that he would be charged. It decided (at [80]-[83]) that if charged he would merely be fined and would not face a custodial sentence. The appellant failed to establish that the asserted error is material in the sense that it deprived him of a realistic possibility of a different outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (Hossain) at [25] and [30] (Kiefel CJ, Gageler and Keane JJ), because even on the more serious of the two possible outcomes the IAA considered the harm the appellant might suffer fell short of constituting harm which engaged Australia’s protection obligations under s 36 of the Act.

38    No jurisdictional error is therefore disclosed and the first particular to the appeal must be rejected.

Particular (b) - Finding about the appellant being released without charge

39    Under the second particular the appellant alleges that the IAA’s finding that the appellant would not be charged or was unlikely to be charged with an offence under the I&E Act was unreasonable, irrational and illogical and that the evidence did not support such a finding.

40    The appellant submits that the IAA did not refer to any evidence in relation to how recidivist offenders are dealt with, and argues the obvious inference is that recidivist offenders are much more likely to be prosecuted when detected, with detection in the present case being inevitable. He contends that the country information was to the effect that upon detection of an illegal departee, arrest and prosecution was an automatic consequence.

41    The appellant says that the finding that there was no prospect of him being prosecuted or that prosecution was unlikely, lacked an evidentiary foundation. He contends that there was no evidence before the IAA as to how children were generally dealt with under Sri Lankan criminal law, and the IAA merely relied on the singular event of what occurred upon the appellant’s first return to Sri Lanka as a 12 year-old. The appellant further submits that, on a closer analysis of the evidence as to what occurred on his first return to Sri Lanka, the evidence in fact supported a conclusion that he was not charged on that occasion. He contends that his account that he was “arrested by police” and held in “prison” is more consistent with the fact of him having been charged, albeit released after being held overnight in prison, rather than not being charged at all. The country information also said that the routine process for persons considered to have illegally departed was arrest by police, charge, detention in prison pending appearance before a magistrate, and then release with a fine shortly thereafter.

42    Finally, the appellant argues that, the IAA having found that the Sri Lankan authorities are likely to identify him as someone who had twice departed Sri Lanka illegally, then overlooked the prospect of the appellant being charged in relation to both illegal departures on any future return.

Consideration

43    I do not accept the appellant’s contentions. On the facts as found by the IAA the appellant had not been charged under the I&E Act following his first illegal departure, because he was a minor. That conclusion was open to the IAA on the evidence and it provides a rational basis for its conclusion that he would not be charged or at least it was unlikely that he would be charged for the second illegal departure a few months later when he was still only 12 years old. In my view that finding cannot be said to be so unreasonable that no reasonable decision-maker could arrive at the same decision: see Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130]-[135] (Crennan and Bell JJ).

44    There was no requirement upon the IAA to gather country information which specifically went to how the Sri Lankan authorities might treat children who have breached the I&E Act, or what might happen to people who had twice illegally departed the country. It was enough for the IAA to consider the country information before it and form a view as to what might occur in the appellant’s case. Based upon the IAA’s finding as to what had occurred when the appellant was first returned to Sri Lanka it does not demonstrate extreme illogicality or irrationality to conclude that, because he was a young minor when he departed the second time (and thus not personally responsible for his actions) it was likely that the Sri Lankan authorities would treat him in the same manner as the first time.

45    Further, this particular suffers from the same problem as particular (a). Even if it is unreasonable, irrational or illogical for the IAA to conclude the appellant would not be charged or was unlikely to be charged, the IAA assessed the risk of harm the appellant would face on return on the basis that he would be charged and decided (at [80]-[83]) that he would merely be fined and would not face a custodial sentence. Thus the appellant failed to establish that the asserted error is material in the sense that it deprived him of a realistic possibility of a different outcome: Hossain at [25], [30].

46    The second particular must also be rejected.

Particulars (c) and (d) - Findings that any period of detention or imprisonment would be brief or short and that there is no prospect the appellant would face a custodial sentence

47    By the third and fourth particulars of the appeal the appellant contends that the evidence before the IAA could not rationally or reasonably support a finding that the appellant was unlikely to face the consequences of a charge for breach of the I&E Act, including detention in a prison and the potential for a custodial penalty on sentence. This contention is predicated on the appellant being someone who illegally departed from Sri Lanka on two occasions and who was therefore a recidivist offender. The appellant argues that it should be inferred that recidivist offenders will be treated more harshly than first-time offenders, and that his case could not rationally be treated by the IAA as if it were in the same category as those which include a single illegal departure.

48    He argues that the IAA’s deference to the country information – including that “in most cases” illegal departees will be granted bail, will not suffer custodial sentences and will only be fined – was misplaced in the absence of any specific country information regarding recidivists. The appellant submits that his being a second-offender was a salient and unusual feature of his claim and country information of greater generality could not subsume it.

49    The appellant contends that it was legally unreasonable for the IAA to conclude that a custodial sentence would be off the cards for someone who illegally departed the country twice, when the description of the stated purpose for fining offenders is “to act as a deterrent towards joining boat ventures in the future”. He submits that s 45(o) of the I&E Act prescribes that in the event of a custodial sentence being imposed, a mandatory minimum term of one year of imprisonment applies (with or without labour according to s 52 of the Sri Lankan Penal Code) which punishment easily rises to the level of serious harm under s 36 of the Act.

Consideration

50    I do not accept the appellant’s contentions.

51    This is not a case where the decision-maker failed to comprehend that the person seeking asylum had twice illegally departed Sri Lanka (c.f. BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378). Rather, the IAA acknowledged that the appellant had twice illegally departed Sri Lanka, and on review of the detailed country information about the circumstances which would confront an illegal departee on return to Sri Lanka, the IAA set out what it found would likely occur in the appellant’s case.

52    The IAA noted (at [76]) that “Sri Lanka’s Attorney-General’s Department has advised DFAT that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally”. If no illegal departee had ever been given a custodial sentence, the IAA’s conclusion that the appellant (who had twice departed illegally) would not be subject to a custodial sentence was one that was open to it. That conclusion was not one which no rational or logical decision-maker could reach on the evidence: see SZMDS at [130]-[135].

53    The appellant’s contention that he would be treated more harshly as a recidivist offender is really just an argument that the IAA arrived at the wrong factual finding, and bespeaks merits review. It does not establish legal unreasonableness. Allusions to the Sri Lankan Penal Code go nowhere in light of the advice DFAT received from the Sri Lanka’s Attorney-General’s Department.

54    The third and fourth particulars do not disclose jurisdictional error.

Particular (e) - Failing to take into account the probability and gravity of the consequence of the feared harm

55    Under this particular the appellant alleges that the IAA failed to undertake the necessary qualitative assessment and failed to properly consider the circumstances and consequences of his detention and the interplay with his status as a child on return to Sri Lanka. He contends that he is at particular risk of significant harm as a child being detained in prison with adults, including convicted adult prisoners. On his argument, being a child elevated his vulnerability in relation to the other generalised poor conditions of Sri Lankan prisons, and the risk of being a victim of violence or torture or other inhuman or degrading conditions, and exacerbated the duration of any custody to which he will be exposed by way of remand before attending court; remand if bail is refused; or by way of custodial sentence. He cites the decision in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610 at [94] (Gageler J) and at [41] (French CJ, Kiefel, Bell and Keane JJ) for the proposition that an assessment of potential harm requires an evaluation of not only the probability of an occurrence but also the severity of the consequence of such an occurrence.

56    The appellant submits that the IAA unreasonably relied on DFAT country information that the “risk of harm for the majority of returnees is now low” and “the risk of torture or mistreatment of those suspected of committing an offence under the I&E Act is low” without taking into account that the appellant was a child. He argues that the IAA overlooked the fact that the appellant was detained for a short time in a prison on his last return, as opposed to being held in police custody at the airport, and failed to take into account the risk of harm that flowed from that. By not referring to the appellant’s previous detention in a prison, or his vulnerability as a child, the IAA failed to exercise its jurisdiction by failing to consider the full integers of his claim, which squarely arose on the materials: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ, Hayne J agreeing at [95]).

Consideration

57    I do not accept the appellant’s contentions.

58    First, the IAA’s reasons are replete with examples which show that it understood that, if returned to Sri Lanka, the appellant would return as a minor.

59    Second, the IAA was not required to refer in its reasons to every piece of evidence and every contention made by the appellant: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ). The IAA did not err by not referring to the appellant’s previous short detention when returned the first time, or his vulnerability as a child, when the thrust of its decision was that if the appellant was charged he would be remanded in detention for only a short period, probably overnight.

60    Third, on a fair reading, it is plain that the IAA recognised that prison conditions in Sri Lanka are harsh, including through overcrowding, poor sanitation and a lack of resources (at [90]). It did not however consider that such conditions, for the short period the appellant was likely to endure them, constituted serious or significant harm. Further, the IAA noted that laws of general application such as the I&E Act in relation to persons who had illegally departed will not ordinarily constitute persecution under the Act because they do not constitute discrimination for a Refugees Convention reason.

61    Fourth, the IAA clearly understood that the risks of harm that the appellant might face upon return through any period of detention were heightened because of his youth. For example, the IAA found (at [81]):

…Even if the applicant, a minor, were held over a weekend or public holiday until seen by a magistrate, the applicant would only face a brief period in detention. Even having regard to poor conditions and the applicant’s age, I do not consider that a brief period in detention, to which the applicant may be subject, would constitute the level of threat to his life or liberty, or to significant physical harassment or ill-treatment under s 5J(5) of the Act or otherwise amount to serious harm.

(Emphasis added.)

62    The IAA concluded (at [83]):

I have considered the applicant’s cumulative circumstances including that he is a young Tamil of the Pentecostal Christian faith and that he departed Sri Lanka illegally twice and will be returning to Sri Lanka as a failed asylum seeker for the second time. Even having regard to his cumulative circumstances, I am not satisfied that there is a real chance that the applicant will face persecution on return to Sri Lanka now or in the reasonably foreseeable future.

(Emphasis added.)

63    On a fair reading the IAA did not ignore or disavow the appellant’s previous detention or his particular vulnerabilities, it simply found that the cumulative circumstances did not equate to a real chance that the appellant will face persecution on return to Sri Lanka.

64    This particular does not disclose jurisdictional error on the IAA’s behalf.

Conclusion

65    It is accordingly appropriate to dismiss the appeal with costs.

Associate:

Dated:    1 June 2020