Federal Court of Australia

EIJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1429

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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

BURLEY J:

1.    INTRODUCTION

1    The appellant is a citizen of Sri Lanka of Tamil ethnicity, who arrived in Australia as an undocumented air arrival in February 2019. He applied for a Safe Haven Enterprise Visa (SHEV) on 5 March 2019. A delegate of the Minister for Home Affairs (as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was then known) refused the application on 20 March 2019. He then sought review of the delegate’s decision by the Administrative Appeals Tribunal, which affirmed the delegate’s decision on 24 June 2019. The appellant then applied to the Federal Circuit Court of Australia (FCCA) for orders setting aside the decision of the Tribunal. On 6 March 2020 a judge of that court dismissed the application.

2    The appellant now appeals to this Court. He seeks leave to rely on an amended application in the following terms (proposed amendments are in mark-up):

(1)    By failing to have regard to the material in the appellant’s mother’s Department File (including the reasons for the granting of a protection visa and the evidence she gave in relation thereto) the Tribunal’s decision was infected with jurisdictional error because:

(a)    It was not provided with all documents relevant to the review of the decision pursuant to s 418(3) of the Migration Act 1958 (Cth) (Act);

(b)    The failure to provide documents under s 418(3) deprived the appellant of a fair hearing under s 425 of the Act;

(c)    The Tribunal unreasonably failed to get that information pursuant to s 424 of the Act;

(d)    The Tribunal failed to make an obvious inquiry regarding a critical fact, being the reasons behind the granting of the appellant’s mother’s protection visa and the evidence relating thereto.

(2)    The Tribunal failed to understand the appellant’s claim and did not determine all aspects of it, in that it:

(a)    Failed to determine whether the Sri Lankan authorities were aware of the appellant’s mother’s role in intelligence;

(b)    Failed to consider that the person known as M might expose the appellant’s mother’s role in intelligence to the Criminal Investigation Department (CID) or other authorities, in other words, the possibility of future harm;

(c)    Failed to consider the possibility that the CID letter was genuine, and the consequences thereof.

(3)    The Tribunal denied procedural fairness, the decision gives rise to a perception of gender bias, and the Tribunal and determined the matter unreasonably, illogically, without intelligible justification or active intellectual consideration in that it:

(a)    Misapprehended the nature of the appellant’s mother’s evidence as to why she suffered and feared persecution because of her role within the Liberation Tigers of Tamil Eelam (LTTE) intelligence wing and the method by which risk was determined;

(b)    Misunderstood or misconstrued the appellant’s mother’s evidence concerning the gendered form of persecution as constituting the reason for the persecution by the State;

(c)    In determining that the appellant’s mother had not claimed or given evidence that she faced persecution because of her role within the LTTE, the Tribunal did not afford her procedural fairness as a witness, and/or made an error of the type described in EZC17 v Minister for Immigration and Border Protection [2019] FCA 163 in that she had not withdrawn the claim;

(d)    In seeking only a singular purpose of persecution, the Tribunal mistook the form of persecution as the reason for the persecution itself, and thereby misconstrued how that persecution of the appellant’s family as a particular social group could manifest in relation to the appellant through M and the CID;

(e)    The Tribunal misunderstood the appellant’s claims and his mother’s evidence in failing to grasp that the appellant faced persecution through extortion by M due to his mother’s role within the LTTE intelligence unit rather than any particular knowledge of where jewellery was actually hidden;

(f)    The Tribunal did not afford procedural fairness in respect of its finding that the appellant’s uncle did not have a high profile of adverse interest or that the appellant would not face a risk of harm as a result of his familial connection with the LTTE if he were returned as a failed asylum seeker.

3    Grounds 1 and 2 are the same as grounds 1 and 2 advanced before the FCCA. Unamended ground 3 was also advanced before the FCCA, but the allegations of denial of procedural fairness and a perception of gender bias were not raised before the FCCA.

4    The appellant was represented by Mr Daniel Taylor of Sydney West Legal and Migration, solicitors, at the hearing and filed written submissions in support of the appeal. The Minister was represented by Ms Joanna Davidson of counsel, and also filed written submissions. The Minister opposed the grant of leave to rely on amended ground 3 of the Notice of Appeal.

2.    THE DECISION OF THE TRIBUNAL

5    The appellant was represented by a registered migration agent before the delegate. The same migration agent represented the appellant before the Tribunal, and attended the hearing with him.

6    As advanced at the hearing, the present appeal focusses particularly on the treatment by the Tribunal of the connection between the appellant’s own claims and his mother’s participation in the LTTE. The decision record of the Tribunal noted that the appellant’s claims were set out in his visa application documents, developed in a written statement provided on 15 March 2019 which annexed a statement made by his mother on 7 March 2016 in support of her own SHEV application, and summarised in the delegate’s decision. The Tribunal also noted that the appellant had provided to the delegate a document written in Sinhalese dated early 2019 (CID letter). No official translation of the CID letter was made available to the delegate or the Tribunal, though the applicant’s agent confirmed during the hearing that the letter instructed the appellant to report to the CID office in Colombo soon after. As part of his own application the appellant also submitted a copy of his mother’s 2016 SHEV application, which included her statement dated 7 March 2016 which was summarised by the Tribunal. Prior to the hearing before the Tribunal, the appellant provided a further statutory declaration dated 22 May 2019, which the Tribunal also summarised. The Tribunal also referred at length to the appellant’s oral evidence before it and the oral evidence given to it by the appellant’s mother.

7    After reciting the evidence the Tribunal made the following basal findings of fact at [45]:

 (a)     The applicant was born in [town], Sri Lanka on [date].

(b)     The applicant is an ethnic Tamil who grew up in the Norther[n] Province [of] Sri Lanka, a former LTTE controlled area.

(c)     The applicant’s mother now lives in Australia with his two sisters (aged 20 years and 18 years).

(d)     The applicant’s father passed away in 2013. In or about 1996 he was [severely] injured as a result of a beating by the Sri Lankan Army (SLA).

  (e)     The applicant’s brother (aged 26 years) has lived in Switzerland since 2015.

 (f)     The applicant completed his primary and high school education at his local school [in town], Sri Lanka and completed his A level exams in 2017.

(g)     The applicant enrolled in a Sri Lanka[n] government sponsored College known as [name] but did not commence his studies.

 (h)     The applicant’s mother worked for the LTTE as a communications officer.

(i)     After the war the applicant and his family were housed in an IDP [Internally Displaced Persons] camp for displaced Tamil civilians. The applicant’s mother and father have not been identified as LTTE cadres by the authorities.

(j)     The applicant’s mother and his two sisters arrived in Australia as unauthorised maritime arrivals on 3 November 2012 and were granted a SHEV on 10 July 2017.

(k)     The applicant lived with his maternal grandparents in [town], Sri Lanka until October 2018.

 (l)     The applicant’s two maternal aunts continue [to] live in [town], Sri Lanka together with five of his maternal cousins.

(m)     The applicant’s paternal grandmother and one of his paternal aunts live in [another town].

  (n)     The applicant made the following trips in and out of Sri Lanka:

•    Early 2018 – Singapore.

•    Mid 2018 - India.

•    Mid 2018 – Dubai – Azerbaijan- Dubai.

•    Early 2019 – Singapore – Australia.

8    The appellant’s claims insofar as they concern his mother’s involvement in the LTTE were set out earlier in the Tribunal’s reasons. The following paragraphs relevantly set out the details of the claim:

[30]     The applicant stated that he wanted a protection visa because he cannot live in Sri Lanka. He said that in or about February 2017 a man, known as [M], who worked for the LTTE with his mother had started harassing and threatening him saying that he knew his mother knew the whereabouts of jewellery hidden by the LTTE. The applicant claimed that [M] is an ethnic Tamil who has aligned himself with the [CID]. The applicant claimed that because his mother worked with the LTTE, [M] believes that she knows where the LTTE hid its jewellery and other riches at the end of the war. The applicant and his mother both said to the Tribunal that they had no knowledge of any jewellery hidden by the LTTE.

[31]     The applicant said that [M], had come to the applicant’s maternal grandparents’ home [on] 5 occasions demanding that the applicant tell him where the jewellery was hidden. His evidence was that [M] had first threatened him in February 2017. He then retuned two or three months later, in or about April 2017, with three or four men demanding that he tell them were the jewellery was hidden. The applicant said that he threatened and assaulted him. As a result the applicant enquired with his mother about the jewellery to which she said she had [no] knowledge of any jewellery being hidden by the LTTE. The applicant’s mother gave evidence before the tribunal and confirmed that she had no knowledge of any such jewellery.

9    The Tribunal recites further claims by the appellant to the effect that M returned several other times, including in July 2017 and in about March 2018. Following that, in about August 2018 the appellant went to Dubai, and while he was away M returned and threatened to harm his grandfather. The appellant’s grandfather died in October 2018, and the appellant returned to Sri Lanka. He was again approached by M, this time in the company of three men whom he was told were from the CID. Again they demanded to know the location of the jewellery, and assaulted and threatened him. He then went into hiding. On 9 January 2019 his grandmother called him to say that she had received the CID letter referred to at [6] above. The appellant departed Sri Lanka because he was concerned about having received the CID letter.

10    The Tribunal recorded:

[37]     The applicant’s evidence to the delegate was that … he departed Sri Lanka because he was concerned about having received the CID letter. The applicant was not able to say if the letter was authentic from the CID office or a forgery. His evidence was that notwithstanding it might be forgery, upon receiving the letter he feared for his safety and fled. The applicant’s evidence was that on 26 January 2019 men arrived at his maternal grandmother’s home and searched the house and telling his grandmother that the applicant was to surrender. The applicant said that he had paid an agent to arrange for his departure from Sri Lanka and arrived in Australia on 27 February 2019.

[38]     The applicant specifically confirmed to the Tribunal that the reference in his claim to him having ‘received constant threats, intimidation and demands for money, as well as attention from the authorities” referred only to the threats by [M] and his associates as detailed in his evidence to the Tribunal. He specifically confirmed that he had not received any threat from the authorities or any other group or individual. While he claimed that [M] had aligned himself with the CID and would … have him picked up in the [e]vent he returned to Sri Lanka, he had never been threatened or harasse[d] by any officer or official of the CID or any other authority. Finally, when questioned if he feared any harm from the government or the authorities in the event that he returns to Sri Lanka, the applicant merely repeated that he feared being harmed by [M] and his associates. He claimed that in the event he returned [M] would cause the CID to kidnap and shoot him. The applicant otherwise did not provide any evidence of harm that he may suffer from the authorities in the event he is returned to Sri Lankan [sic].

[39]     The applicant claims that if he is returned to Sri Lanka he will suffer harm by being kidnapped and shot by [M] and his associates or upon their instructions to the CID.

11    The Tribunal found that the appellant’s mother holds a SHEV in her own right, which she was granted before the appellant arrived in Australia. It said (emphasis added):

[55]     ... In the hearing the applicant and his mother both confirmed to the Tribunal that the applicant’s mother’s claim was based on the fact that she and the applicant’s sisters, as females, were subjected to inappropriate advances by the SLA. As a result, the applicant, his father and his brother all remained in Sri Lanka as there was no[t] a real chance, as males, they would suffer harmed [sic] at that time.

[56]     The applicant claims that his parents were members of the LTTE. However, the applicant’s evidence despite his claims as to his parents activities was that he was very young at the time of his parents involvement with the LTTE and was not able to say in any details [sic] what involvement they had with the LTTE. The applicant’s mother’s claim has already been assessed and accepted by a delegate of the minister. Accordingly, the Tribunal accepts the applicant’s mother’s evidence that due to his father’s inability to work, as a result of being beating by the SLA in 1996, she started work for the LTTE in or about 2003. The applicant’s mother did not claim to have been the head of the telecommunications unit or to have held any position of responsibility within the LTTE. Rather she worked in the LTTE’s communication unit as a low to medium level civil servant employee for approximately six years. Her tasks included passing information obtained from Sri Lankan Intelligence officers, distributing money received from the diaspora and assisting in taping calls and other information. The applicant’s mother did not claim to be a member of the LTTE. Therefore, while the Tribunal accepts and finds that the applicant’s mother worked for the LTTE, it finds that she worked for the LTTE as a low level employee and does not accept that she held any position of responsibility or that she was ever member or cadre of the LTTE.

...

[59]    After a large number of LTTE members were arrested and detained with most being sent to rehabilitation. However, despite having disclosed her work for the LTTE between 2003 [and] 2009 the applicant’s mother was not detained for questioning or sent to rehabilitation. Nevertheless she states that she was interrogated, harassed and threatened as a result of her involvement with the LTTE. While the interrogation and threats that she states that she received were as a result of her involvement with the LTTE, her claimed reason for seeking protection was that she and her daughters were receiving inappropriate advances from members of the SLA who were requiring her to attend for questioning. Therefore while the applicant’s mother’s involvement in the LTTE appears to have been an excuse for questioning this [sic] mother and sisters, it was not the real reason for her being required for integration [sic], but rather she feared the interrogation due to the threatened [in]appropriate behaviour by the SLA. As a result, as males, there was no real chance the applicant, his father and brother would be seriously harmed at the time his mother departed Sri Lanka. Accordingly the tribunal finds that there is no real chance the applicant will be seriously harmed as a result of his mother having been interrogated and harassed and threatened as a result of her involvement in the LTTE.

[60]     The applicant and his mother confirmed to the Tribunal that the reason why the applicants mother fled Sri Lanka was that she and he[r] daughters were facing harassment and unwanted sexual advances from the Sri Lankan Army. As such, the applicant, his father and brother remained in Sri Lanka as they did not fear any harm at that time.

12    The Tribunal noted that the appellant claimed that after his mother departed for Australia his brother had been harassed by M and his associates, which caused him to leave for Switzerland, however, the brother did not provide any statement in support of the appellant’s claims. The Tribunal found, based on the appellant’s own evidence, that any threats made by M toward his brother were “at a relatively low level of harassment and as such did not [amount] to serious or significant harm”.

13    The Tribunal then referred to the appellant’s claims that he had himself received threats and harassment from M, who demanded to know the location of money and jewellery believed to be hidden by the LTTE. The claim was that M worked with the appellant’s mother in the LTTE and believes she knows the location of the money and the jewellery. The Tribunal dismissed this claim on the following basis (emphasis added):

[64]     However, the Tribunal has serious concerns about the applicant’s evidence in relation to the alleged threats by [M] and his associates. The Tribunal has found that the applicant’s mother worked for the LTTE’s communication unit as a low to medium level civil servant employee for approximately six years. There is nothing to suggest in either the applicant’s evidence or his mother’s evidence that she held such a position within the organization to have information as to where it ‘hid’ any of its financial assets. In fact her specific evidence was that she had no such knowledge. [M] having worked with the applicant’s mother would have known that she was a low level employee and as such would not have had any knowledge of the location of the jewellery as claimed. In addition, the Tribunal finds it extremely unlikely that a person pressing to have certain information would continue to do so for a period of approximately two years without carrying out their threats. By the applicant’s own evidence the visits by [M] and his associates was infrequent. Despite the applicant’s evidence that his grandfather was assaulted, the Tribunal does not accept that they would have visited the applicant’s home on such an infrequent basis and over such a long period of time for the purposes of discovering the location of the jewellery. Accordingly the Tribunal does not accept that the applicant was threatened or harassed by [M] and his associates or any member of the CID for the purposes of discovering the location of the LTTE jewellery as claimed.

14    The appellant also advanced a claim that his father was a member of the LTTE and had worked in the supply section of the LTTE. The Tribunal considered this claim to be “either embellished or a complete fabrication”, though it accepted his mother’s evidence that his father had been captured and beaten by the SLA.

15    Given that it had not accepted that either of the appellant’s parents had been members or cadres of the LTTE, the Tribunal rejected the appellant’s claim that as a result of being a family member of a LTTE member he feared harm. The Tribunal noted that the appellant only claimed to fear harm from his association with LTTE members on the basis of threats received from M, and not on the basis of conduct by Sri Lankan authorities. Furthermore, the Tribunal noted that country information indicated that whilst close relatives of high profile former LTTE members may be the subject of monitoring by the Sri Lankan authorities, that would not apply to the appellant, who is the son of a low level employee of the LTTE who was not a combatant. Furthermore, the Tribunal found:

[71]     The applicant’s mother’s evidence was that the authorities did detained [sic] and interview her, but not for any political or strategic purpose, but rather for inappropriate personal reasons not related to her involvement in the LTTE. The fact that his mother and her father were not detained for questioning or sent to rehabilitation indicates that they were of no great interest to the authorities. It is therefore unlikely that the applicant and/or his brother are of any interest to the authorities. Therefore, based on the applicant’s own evidence and the available country information, the Tribunal finds that there is no real chance he will be seriously harmed in the event he returns to Sri Lanka by reason of being a family member of the LTTE.

16    Ultimately, the Tribunal concluded that the claims made by the appellant were not made out, and that the appellant is not a person in respect of whom Australia has protection obligations under the Act.

3.    THE APPEAL

17    Having regard to the manner in which the appellant presented his arguments, it is convenient to address ground 2 before turning to ground 1 and proposed amended ground 3. It is of note that nowhere in the grounds of appeal, or his written submissions, does the appellant contend that the primary judge fell into error. Nevertheless, the appeal proceeded on the basis that the appellant alleged that the primary judge erred in failing to find that the Tribunal had erred for the reasons set out in the Notice of Appeal.

3.1    Ground 2 – alleged failure to understand and determine the appellant’s claims

18    In ground 2 the appellant contends that the Tribunal failed to understand the appellant’s claim. In the particulars appended to the ground, he contends that the Tribunal: (a) failed to determine whether the Sri Lankan authorities were aware of his mother’s role in intelligence for the LTTE; (b) failed to consider that M might expose the appellant’s mother’s role to the CID or other authorities and so expose (I interpolate) the appellant to future harm; and (c) failed to consider the possibility that the CID letter was genuine, and the consequences thereof.

19    A failure to make a finding on a “substantial, clearly articulated argument relying upon established facts” can amount to a failure to accord procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [55] (Black CJ, French and Selway JJ). Whether or not a claim has been “clearly articulated” was considered by Allsop J (as his Honour then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695:

[15]     The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]–[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated.  See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112.  From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61].  As the Full Court said at [63] much depends on the circumstances.  Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence.  A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. 

20    In his submissions the appellant developed his arguments by contending that the Tribunal failed to understand the appellant’s mother’s role in the intelligence unit of the LTTE. He submits that the Tribunal recited the nature of the tasks that she had done, but did not engage with the implications of those claims that as an intelligence official she not only participated in the conflict in a significant way, but was also likely in possession of information concerning the networks of diaspora donors and the members of the intelligence unit. A broad assertion is made that the Tribunal did not have a real and meaningful engagement with the appellant’s submissions and the evidence concerning his mother’s role.

21    In oral submissions, the appellant contended that the Tribunal had a “serious misunderstanding” of the evidence. In essence, he submits that it misunderstood the cause of the persecution of his mother as being her gender, rather than her link with the LTTE. The error lay in the findings at [55], [56] and [60] that the harassment of the mother was purely because of unwanted sexual advances from the SLA, but not because she had been actively involved in the LTTE.

22    There are several difficulties with this submission. First, as the Tribunal found at [55], [59], [60] and [71], the mother’s evidence was that the authorities detained and interviewed her not for any political or strategic purpose, but rather in order to make inappropriate sexual advances that were not related to her involvement in the LTTE. During the course of oral submissions the appellant appeared to challenge that finding. That challenge must fail. It was a finding supported by the oral evidence of the appellant’s mother, to which I was taken in the course of submissions, who gave evidence to the effect that it was her understanding that she was requested to attend interrogations not for the purpose of being questioned, but basically for “improper” (or sexual) purposes. That evidence came against a background of a statutory declaration provided by the mother in support of her own SHEV application, during which she referred to her concerns that the SLA would misbehave sexually with her and her daughters even though she was unable to assist them. The oral evidence of the mother was directed to determining whether the interest of the authorities was, as she understood it, because of her affiliation with the LTTE. The answer provided was sufficient to leave it open to the Tribunal to make the conclusion that it did.

23    Secondly, it is apparent from the reasoning of the Tribunal at [56] that it understood that a component of the appellant’s claim arose from his mother’s involvement in the LTTE. That component of the claim was addressed at [56] to [61]. It cannot be said that the claim about the mother’s role in the intelligence service was not addressed: to the contrary, it was addressed explicitly, with the Tribunal finding at [56] that his mother was a low level employee of the LTTE who did not have a position of responsibility and was not a member or cadre of the LTTE. Furthermore, at [59] the Tribunal acknowledged that the mother had faced threats and interrogations from at least one Sri Lankan authority, namely the SLA, who used her links with the LTTE as an “excuse” for questioning her.

24    The appellant next submits that the Tribunal did not have a real and meaningful engagement with the appellant’s submissions and the evidence concerning M and his associates in the CID and the possibility that he might suffer harm in the future. This argument must also fail. The Tribunal clearly articulates in several places the claim advanced by the appellant. At [38] it notes that the appellant specifically confined his claim to threats and intimidation, and fear of persecution upon his return to Sri Lanka, on the basis of the threats and intimidation by M. Whilst in oral submissions in reply the appellant contended that there was a broader claim advanced to the effect that he feared persecution generally from the Sri Lankan authorities, I do not accept that this claim was made. The transcript of argument before the Tribunal reveals that the claim was indeed limited in the manner summarised by the Tribunal at [38].

25    The claim was rejected because the premise for the allegedly threatening behaviour by M was that M had worked with the appellant’s mother in the LTTE and M had a belief that she knew where LTTE jewellery and money was hidden. The Tribunal rejected the premise, on the basis that it did not accept that there was anything in either the appellant’s evidence or his mother’s evidence that suggested she held a position within the LTTE which gave her knowledge as to where such assets had been hidden. Because M also worked with the appellant’s mother, the Tribunal considered that he would also have known the mother did not hold a position which would give her knowledge of such matters. The Tribunal also rejected the appellant’s claims to being harassed by M over a sustained period.

26    Furthermore, I reject the proposition set out in the appellant’s written submissions that the appellant advanced a claim before the Tribunal that M had threatened to pass on to the authorities particular information about the appellant’s mother, such as a claim concerning his mother’s likely possession of information “concerning the network of diaspora donors and members of the intelligence unit”. Having regard to the evidence and the submissions advanced before the Tribunal I do not consider that this claim was sufficiently raised on the face of the material in the sense described in NAVK.

27    The third limb of the argument advanced by the appellant is that the Tribunal failed to consider the possibility that the CID letter was genuine, and the consequences thereof. This was not addressed in either written or oral submissions. The Tribunal summarised the appellant’s claims in relation to the CID letter at [20], [21], [36] and [37] of its reasons. It is to be noted that the appellant failed to provide any written translation of the CID letter to either the delegate or the Tribunal. The only translation of the document available to the Tribunal was an oral “confirmation” by the appellant’s migration agent of the purported contents of the CID letter.

28    The Tribunal’s findings as to the CID letter were as follows:

[67]     Finally, in relation to the CID letter the Tribunal gives this no weight. The applicant conceded that the letter may not be genuine, but rather may have been done to scare him into divulging the location of the jewellery. The letter purports to require him to report to the [CID] in Colombo. This seems improbable for the purposes of him divulging the information as to the location of the jewellery. Given the fact that the letter may not be genuine, the fact that the Tribunal does not accept that the applicant was threatened as claimed in relation to the jewellery and that it does not accept that the applicant was attacked by as [sic] claimed on 22 October 2018 the Tribunal gives the letter no weight in assessing the applicant’s claims.

29    In circumstances where no official translation of the CID letter was available, where the appellant had accepted that he could not confirm whether the CID letter was genuine or a forgery, and where the Tribunal had made adverse credibility findings about the appellant, in my view the Tribunal was entitled to give the letter no weight.

30    The FCCA properly dismissed this ground on the basis that it was apparent that the Tribunal had properly appreciated the claims advanced by the appellant. There is no error in this finding. Ground 2 must be dismissed.

3.2    Ground 1 – alleged failure to have regard to the material in the mother’s Department file

31    In ground 1 the appellant contends that the Tribunal fell into jurisdictional error by failing to have regard to material in his mother’s departmental file, including the reasons for the granting of a protection visa, and the evidence she gave in relation thereto. In particular (a) to that ground, it is said that the error arose because the Tribunal was not provided with all documents relevant to the review of the decision of the delegate pursuant to s 418(3) of the Act.

32    Section 418(3) of the Act states that it is the Secretary’s duty to provide to the Tribunal “each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.”

33    There is consistent authority for the proposition that there are limited circumstances in which a third party breach, not known to the Tribunal, may result in jurisdictional error. In SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; 191 FCR 123 at [59] – [66] the Full Court (Bennett and McKerracher JJ, Rares J agreeing at [90]) found that in the absence of a contention that a part of the process has been tainted by fraud or that the action of the Secretary was other than inadvertent, a breach of s 418(3) will not amount to a jurisdictional error. That decision was recently followed in Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50; 261 FCR 97 where the Full Court (Tracey, Mortimer and Moshinsky JJ) found that it was not plainly wrong, and should be followed (at [63], [64]).

34    In BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61; 248 FCR 159 at [92] – [107], the Full Court (Griffiths, Kerr and Farrell JJ) considered a similar contention. After reviewing the authorities, including SZOIN, the Court concluded:

(a)    that a breach of s 418(3) will not of itself found jurisdictional error in the Tribunal, absent the taint to which the court in SZOIN referred (at [93]).

(b)    however, it is a failure to comply with s 425 of the Act if the failure to provide information causes the Tribunal, even innocently, to mislead an applicant to mistakenly believe that a state of affairs exists and that in turn affects the manner in which the case is conducted to the applicant’s detriment (at [106]).

35    In relation to particular (a), the appellant contends that the Tribunal was unable to conduct a review as required under Part 7 of the Act by the failure on the part of the Secretary to provide relevant documents. The critical documents are said to “include” documents concerning the appellant’s mother’s arrival interview and the decision record documenting the reasons for the grant of the protection visa to the appellant’s mother. He submits that the information provided to the Minister’s department in relation to his mother’s application was relevant and material to his own claims, because, as I understand the submission, it would serve to clarify that the mother’s fear of persecution was not arising from fear of harm as a result of threatened sexual misconduct by the authorities towards her, but rather because she was a known affiliate of the LTTE. As the appellant puts it in his submissions, the reason he fled Sri Lanka was due to his mother’s association with the LTTE, and M and the CID were claimed to have an adverse interest in the family due to his mother and father’s role in the LTTE. Accordingly, he submits, his mother’s evidence concerning her fear of persecution was clearly significant to his claims to fear persecution “because they provide the context in which he claimed to fear harm at the hands of the CID”.

36    The ground identified in particular 1(a) must be rejected on three bases. First, it is not available as a matter of law. The appellant does not suggest that the process of the provision of information by the Secretary to the Tribunal has been tainted by fraud or that the action of the Secretary was other than inadvertent, or that there is any other aspect of the conduct that would suggest that the exceptions identified in SZOIN may be met. Further, no evidence supports such a contention and no pleading raises fraud.

37    Secondly, the appellant has not established that documents relevant to the applicant’s mother’s application are in any event documents that are relevant to the appellant’s own application to the Tribunal within s 418(3). In this regard, as the Tribunal noted at [55] of its reasons, its decision was concerned with the mother’s reasons for seeking protection in Australia, not with whatever it was that satisfied a delegate deciding her case that she should be granted a visa. Furthermore, it was conceded before the primary judge (at [52]) that the transcript and recording of the mother’s arrival interview were not before the delegate in making the decision in relation to the appellant’s SHEV application. The appellant also concedes that he could have obtained the entry interview material, and that he could have lodged a Freedom of Information request in order to access the reasons for the decision made in respect of the mother’s SHEV application. Additionally, the applicant’s mother provided a written authority to the Minister’s department permitting the disclosure of any information she had provided as part of her own protection visa application. However the appellant and his advisors only sought to place the mother’s statement dated 7 March 2016 before the delegate assessing the appellant’s claims, and did not seek to draw attention to any other specific documents or information provided as part of the mother’s SHEV application. In circumstances where he accepts that he could have sought access to other documents on the mother’s file, he can therefore be taken to have made a forensic decision about which documents from his mother’s application he wished the delegate considering his claims to have regard to.

38    Thirdly, the appellant has not established how the alleged breach could have had a material bearing on the outcome of the hearing before the Tribunal. The appellant’s mother gave sworn evidence in the form of a statutory declaration in support of the appellant’s application and provided oral evidence at the Tribunal hearing. Additionally, the statement dated 7 March 2016 which the appellant’s mother gave in support of her own SHEV application was provided by the appellant to the delegate, and was in evidence before the Tribunal. The Tribunal made no adverse findings as to the credit of the mother, and accepted her evidence as to her role in the LTTE. Even were the material relevant to the mother’s SHEV application available to the Tribunal, it is difficult to see how it could be material to the outcome of the Tribunal’s decision.

39    Accordingly, the primary judge’s rejection of the ground articulated by reference to particular (a) was not in error.

40    In particular (b) the appellant contends that the failure to provide documents under s 418(3) deprived him of a fair hearing under s 425 of the Act.

41    Section 425 provides:

425  Tribunal must invite applicant to appear

(1)      The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)      Subsection (1) does not apply if:

(a)      the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)      the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)      subsection 424C(1) or (2) applies to the applicant.

(3)      If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

42    The appellant submits that the Minister’s department regularly accesses information such as the claims of family members when it can be used to establish inconsistencies of claims and that there is no reason why the information should not have been made available where it supported the appellant’s claims. He submits that by reason of the absence, in particular, of the reasons for the grant of the protection visa in respect of the appellant’s mother, the appellant was deprived of the hearing of the kind required under s 425 of the Act.

43    My findings in relation to particular (a) of ground 1 lead to the conclusion that this aspect of the ground must also fail. Further and separately, in my view this ground is also misconceived. As I have noted, the appellant’s mother gave a statutory declaration in support of the appellant’s claims and also gave oral evidence. The statement she had made in support of her own claims for protection was also in evidence before the Tribunal. Her evidence was not rejected on credit grounds. The appellant could have, but did not, obtain access to her entry interview materials. It was open to the Tribunal to accept the evidence of the mother (which it did) and to construe it in the context of the appellant’s claims. As I have noted, the Tribunal’s decision was concerned with the appellant’s claims and the mother’s evidence as to persecution. It was not concerned with the reasons of the delegate whereby it was determined that the mother was the subject of persecution or likely to fear harm. The primary judge did not err in rejecting this aspect of ground 1of the appeal.

44    Particular (c) of ground 1 of the appeal is that the Tribunal unreasonably failed to get the same information pursuant to s 424 of the Act. The appellant submits that neither the appellant nor his mother had access to the findings of the Minister as to why she had been assessed as a refugee. He submits that the lack of any consideration of the power under s 424 was unreasonable.

45    The appellant appears, by this ground, to contend that it may be inferred that the Tribunal failed to consider to exercise its power pursuant to s 424 of the Act to get information that it considers relevant. However, s 424 does not impose a duty to make inquiries: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [20] (French CJ and Kiefel J).

46    Furthermore, as I have noted, the relevance of the mother’s SHEV application to the decision of the Tribunal in respect of the appellant’s SHEV application was limited to the mother’s reasons for seeking protection in Australia, not with whatever it was that satisfied a delegate deciding her case that she should be granted a visa: see the Tribunal’s reasons at [55] and [59]. In that context the reasons of the delegate for granting the protection visa were, at best, tangential.

47    Accordingly, the primary judge did not err in rejecting this aspect of ground 1.

48    In particular (d) of ground 1 the appellant contends that the Tribunal failed to make an obvious inquiry regarding a critical fact, being the reasons behind the granting of the appellant’s mother’s protection visa and the evidence relating thereto. This ground is apparently based on the possibility identified in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [25]:

[25]     Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error.  The duty imposed upon the Tribunal by the Migration Act is a duty to review.  It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.  If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.  It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error...

49    The primary judge correctly held that the appellant has not identified any critical fact that could be the subject of any duty. The appellant had provided the Tribunal with his mother’s statement in support of her SHEV application. Nor is it apparent from the reasons of the Tribunal that the basis upon which the delegate had granted the appellant’s mother a protection visa was critical to its reasoning. To the contrary, it is apparent, for the reasons that I have explained, that the Tribunal was concerned to consider the mother’s evidence which was led before it.

50    In my view the primary judge was correct to reject this aspect of ground 1. Accordingly, for the reasons given above, the primary judge was correct to reject ground 1 in its entirety.

3.3    Proposed Ground 3 – alleged denial of procedural fairness, Tribunal determined the matter unreasonably, illogically and without intelligible justification

51    In proposed ground 3, the appellant contends that he was denied procedural fairness and that the Tribunal determined the matter unreasonably, illogically and without intelligible justification or active intellectual consideration for six reasons set out in the particulars appended to the ground. The chapeaux to the ground also states that the decision “gives rise to a perception of gender bias”. In oral argument, the appellant accepted that this should be understood as a particular of the ground, rather than a separate ground in itself.

52    The principles concerning the grant of leave to raise a new ground not raised before the primary judge are well established. 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 (“VUAX”) 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.

53    In evaluating the prospects of success of a proposed new ground of appeal, the Court is to consider the proposed ground at a reasonably impressionistic level and enquire whether it is “sufficiently arguable” or has “reasonable prospects of success”: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] to [63].

54    The appellant provides no explanation for the new ground being raised now, and not before the FCCA. He was represented before the FCCA by counsel and solicitors. On appeal, he was represented by the same solicitor.

55    As to merits, the appellant submits that the Tribunal failed to afford him procedural fairness as a result of preventing his mother from giving evidence on the second day of the hearing. That submission, which is unsupported by any particular to the proposed grounds, is specious. The appellant’s mother gave oral evidence on the first day of the hearing. She was given an opportunity to advance her evidence and answer questions asked of her. On the second day she appeared to interrupt an exchange between the appellant and the Tribunal member. The Tribunal asked her not to do so. It was this request that prompted the submission now advanced.

56    The contention of gender bias is also untenable, whether characterised as an alleged breach of procedural fairness or a failure to give the claims advanced active intellectual consideration. In his submissions the appellant contends that unintentionally and unwittingly the Tribunal fell into gender bias because it found that female members of the family were facing a threat of sexual assault but male members were not, rather than finding that all members of the family were facing persecution by reason of the mother’s involvement with the LTTE. Particular (c) contends that there was a denial of procedural fairness of the type described in EZC17 v Minister for Immigration and Border Protection [2019] FCA 163; 163 ALD 580 (Yates J). Apparently this is a reference to [30] of that decision where a claim was found to be advanced by the appellant in that case and not addressed by the Immigration Assessment Authority. However, in this case there was no lack of engagement with the mother’s claimed involvement in the LTTE. In its reasons at [56] the Tribunal accepted the mother’s evidence about her tasks in the LTTE’s communications unit. The appellant provides no explanation as to how that approach gives rise to jurisdictional error in any form.

57    The appellant next submits that there was no effective intellectual engagement or proper consideration of the appellant’s claims as presented by his mother, in particular as to how her role within the LTTE intelligence unit was the reason for the persecution of her and her daughters and sons. This submission is apparently referable to particulars (a), (b), (c) and (e). It is not supported by a fair reading of the decision of the Tribunal, which attended to the evidence advanced by the mother, having regard to the claims as characterised by the appellant. No submission was advanced in relation to particular (f). However, having regard to the fact that the appellant attended the hearing, his evidence was received and he was represented at it, in the absence of any submission going to how a finding as to his uncle’s role in the LTTE could have affected the appellant’s claims it is completely Delphic as to how this particular sounds in jurisdictional error.

58    Having regard to the absence of a proper explanation for the failure to advance ground 3 before the FCCA, the lateness of the application to make the proposed amendments in this proceeding, and the poor prospects of success that the ground has, I decline leave to rely on it on appeal.

4.    DISPOSITION

59    The appeal must be dismissed with costs.

Associate:

Dated:    17 September 2020