FEDERAL COURT OF AUSTRALIA
DSN16 v Minister for Immigration and Border Protection [2021] FCA 202
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Leave be granted to the Appellant to rely on his proposed Ground 3.
2. The appeal inclusive of Ground 3 be dismissed.
3. Unless either party applies for a different order within 7 days of the publication of these reasons, the Appellant pay the First Respondent’s costs, as agreed or in default of agreement as assessed.
4. Any party proposing an alternative to that provided for in Order 3 shall file and serve submissions limited to 2 pages.
5. A party opposing such application shall file and serve responding submissions, limited to 2 pages within 7 days of having been served with the application.
6. The question of costs if any such application is made be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KERR J:
1 The Appellant is a citizen of Sri Lanka. He is a Tamil. On 18 October 2012, he arrived in Australia by sea without a visa and was taken into immigration detention. It is not in contest that at that time, he was aged 17.
2 On 7 March 2016, the Appellant applied for a Safe Haven Enterprise Visa (SHEV).
3 On 10 May 2016 the Appellant was granted a Bridging E (Class WE) General (Subclass 050) visa (Bridging Visa) and was released from detention. He was advised as follows:
The Minister for Immigration and Border Protection has exercised his power under subsection 46A(2) of the Migration Act 1958, and has lifted the s46A bar to allow you to make an application for a TPV/SHEV and the associated [Bridging Visa].
As you have now made a valid TPV/SHEV application, a delegate of the Minister has granted you an associated [Bridging Visa] on 10 May 2016.
4 On 22 August 2016, a delegate of the First Respondent (the Delegate) refused the Appellant’s application for a SHEV. That decision was automatically referred to the Immigration Assessment Authority (IAA) for review.
5 In a decision dated 21 November 2016, the IAA affirmed the Delegate’s decision.
6 The Appellant applied for review of that decision before the Federal Circuit Court of Australia (FCCA) pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). His application was dismissed on 23 July 2019. The Appellant now appeals that decision before this Court.
The Appellant’s Pseudonym
7 To protect the Appellant’s anonymity in accordance with the requirements of s 91X of the Migration Act, he was administratively allocated a pseudonym (DSN16) in the court below. His appeal to this Court was brought in that name and it proceeded in that name to hearing.
8 During the hearing of the appeal, however, counsel for the Appellant, Mr Albert, submitted on his client’s behalf that DSN16 was a “meaningless and de-humanising numberplate”. Mr Albert applied for an order under s 37AF(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) for the Appellant to be allocated an alternative “human pseudonym.”
9 Counsel for the Minister, Mr Minson, advised the Court that the Minister did not oppose the Appellant being allocated an alternative pseudonym.
Consideration of application for a human pseudonym
10 Section 91X of the Migration Act prohibits the publication by this Court (and the High Court and Federal Circuit Court) of the name of any person who has applied for a protection visa, if the proceeding relates to that visa.
11 Section 91X(2) provides that in those circumstances:
(2) The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.
12 The constitutional validity of s 91X has never been authoritatively determined. However, in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 (Plaintiff S157) the plurality (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) observed in a footnote to [44] that “[i]n the absence of any direct challenge, it will be assumed that s 91X is constitutionally valid”. It appears that no occasion to reconsider that observation has since arisen in the High Court. Mr Albert did not seek to put the constitutionality of s 91X in issue.
13 I therefore proceed on the same assumption as did the plurality in Plaintiff S157.
14 Section 91X imposes a duty on this Court (and all courts) to not publish the name of a person who has applied for a protection visa. I take it to be uncontentious that what the section prohibits is publication of the person’s real name as would permit their identification. The provision, as I read it, does not require the person’s name to be anonymised in any particular way. If this Court is satisfied that a mechanism other than the use of an administratively allocated set of letters and numbers is in the interests of justice then, pursuant to r 1.32 of the Federal Court Rules 2011 (Cth), it is open to the Court to order that an alternative pseudonym be substituted for the administratively allocated pseudonym: provided the alternative also complies with the terms of s 91X.
15 I have no reason to doubt that the FCCA also has similar power. That course was followed, albeit without any analysis in support, in Atkins v Minister for Home Affairs [2019] FCCA 245.
16 However, there are countervailing pragmatic considerations suggesting that it would not be in the interests of justice so late in the appeal in this case for an alternative pseudonym to be substituted for that which was earlier administratively allocated.
17 All of the materials filed in this matter have been filed in the name of DSN16. It is now too late to do anything about that circumstance. This Court has a duty to safeguard the public interest in open justice. It should be a rare instance where an application is made only at the appeal stage. Naming parties consistently at first instance and on appeal facilitates that objective. It allows anyone interested in the litigation history of a matter to link the reasons given by an appeal court to those from which the appeal has been brought and vice-versa.
18 For those reasons, if such an order is to be sought the application should be made at the time of first filing or as shortly thereafter as is practicable.
19 To substitute a “human pseudonym” in the Court’s reasons to be published for this appeal after everything else in the proceeding has been undertaken in the name of DSN16 would be a potential source of confusion. There may be a rare case when such an application can be adequately explained and a justification for a later substitution established but that is not the present case.
20 Having regard to the very late stage at which the application was made by Mr Albert on the Applicant’s behalf and its limited utility, I decline to alter the Appellant’s pseudonym in these reasons.
THE APPELLANT’S CLAIMS
21 The Appellant first set out his claims in a statement dated 24 February 2016, as part of his application for a SHEV. His claims, most of which concerned events that occurred during his childhood in Sri Lanka, were as described below.
The home guards
22 The Appellant’s family in Sri Lanka live in a rural village. His parents are farmers. He is his parents’ only son. He claimed that in the area in which they live:
…we Tamils are a minority group and most of the population is Muslims. The Muslims do not like us and there are ongoing tensions between us.
23 The Appellant claimed that the village is a “faraway place”. It is therefore:
… not easy for the police to patrol it all the time, [so] they appointed some people to patrol the area on their behalf. Those people we call them home-guards. They are mainly Muslim and bear arms supposedly to keep the village safe. They however tend to take the law into their own hands and do whatever they like to do in the village.
24 The Appellant claimed that the home guards:
…do not like us Tamils because we work hard and relatively speaking are well to do. We own land and are better farmers than they are. They are jealous of us and would like to drive us out of our land.
25 The Appellant claimed that the home guards had a particular antipathy towards his family because the guards had “very close associations” with the family of a girl who had been accidentally hit and killed by the driver of a tractor owned by the Appellant’s father in 2009.
Involvement with the Tamil National Alliance
26 The Appellant also claimed that he and his father were supporters – although not members – of the “Tamil National Alliance” (TNA) which “fought for freedom for us Tamils”. He and his father had assisted in organising TNA meetings, including by “rally[ing] people up”. His father had used his position as leader of a local temple to tell people about TNA meetings. The Appellant said that he:
…would follow [his] father and do what he asked me to do including say setting up for their meetings … [the Appellant] would go with [his father] and provide whatever support he could.
Danger to the Appellant
27 The Appellant claimed that “on five or six occasions” while he was helping his father with TNA activities, “police or CID officials” told him that he should stop helping the TNA and go home. He “would listen to them and go home then and there to please them”, but he and his father “continued to work for TNA whenever [they] could.” As a result, officials came to the family home “from time to time” to question him and his father. Sometimes they beat his father, or his mother.
28 The situation “escalated” in mid-2012. One night “a group of people” came to the family home looking for the Appellant and his father. However, only his mother was home. He claimed that they beat his mother with a “police patrol pole” and that she was subsequently hospitalised. He says that her attackers:
…did not identify themselves but they did tell my mother that they were looking for my father and they wanted my father to do work for the TNA.
29 After that incident, the Appellant and his father “continued to support the TNA”, and so the Appellant’s mother told him not to come home “just in case”. He had slept in a nearby rice paddy field or at his sister’s house. His father also had stayed elsewhere, visiting home only in the mornings. His mother stayed at home.
30 The Appellant claims that a couple of weeks later, “they” burnt the family’s trailer and tried to burn their harvesting machine. The police “came and had a look” and told the family they would “let us know if and when they hear”.
31 The Appellant claimed that due to both his involvement with the TNA and existing tensions within the village, the home guards had subjected him to abuse:
The home guards would stop me on my way to school and demanded money or asked me to do chores for them. For instance, they would ask me to go up to the coconut trees to pluck coconuts for them and if I refused they would tie me up to the tree and beat me. This happened to me from time to time. Sometimes they asked me to go and get petrol for them. If I was on a bicycle going somewhere they would stop me and throw my bicycle away. If they found money in my pocket they would take the money … On a couple of occasions, I was beaten by them so severely that my father had to take me to the hospital … I was scared of them but I could do nothing. Home Guards knew who my father was and they had beaten him several times as well …
…Whenever they saw me they would threaten me, using words to the effect, ‘don’t let us see you otherwise we will beat you.’
… They beat me whenever they saw me. They would remove [my] shirt and tie me up with my shirt and threw (sic) my bike. They would slap me on the face and kick me on my back. I had to go to the hospital 2 or 3 times after the beat me.
32 In September 2012, the Appellant decided to leave and make the journey to Australia by boat.
33 The Appellant claimed that after he left, his mother left the family home and his father stopped going to the temple and working for the TNA. He claimed that the TNA “continued to look for [his father] and [his father] is in hiding meaning moving from place to place”.
34 The Appellant described an incident in 2015 at his sister’s house that his mother had told him about:
That night, my sister and my mother were at home. They opened the gate and knocked on my sister’s door. When the door was opened, they broke it and went in. They told my mother that they were looking for my father asking where he was. My mother told them she did not know. Then they wanted to know when I would be coming back to Sri Lanka, my mother told them that she did not know when I would be back. They slapped her on her face. They then searched the house and ransacked it. They also broken (sic) my sister’s windows. Before they left, they told my mother to tell my father that they were looking for him and me and they would come back.
35 The Appellant claimed that his mother had told him that there had been “a number of such incidents”, and that in no circumstances should he come back or “they” would kill him. The Appellant claimed that the home guards “would go after me and kill me”. The police would do nothing because of his involvement with the TNA. Further he feared that the CID would arrest him as a way to “get to” his father.
36 In support of his post-departure claim that he had reason to continue to fear persecution should he return to Sri Lanka, the Appellant provided the Minister’s delegate with a letter from a Mr Richard Alfred (Mr Alfred). That letter read as follows:
Richard Alfred
XX XXXXX XXX [Street address]
Darwin.
03/02/2016.
To whom it may concern
I the undersign residing at the above address, I know [the Appellant] from Canberra. [The Appellant] is a really good boy; I really like him because he is so simple and helpful.
When I went to Sri Lanka I have visited [the Appellant’s] sisters house and on April 2015. His Sisters house was partly damaged by some unknown people, while I was talking to his mother and sister. They stated that, as strangers are search for [the Appellant] and his Father, his father is still hiding from them. So I was not able to meet his father. [The Appellant’s] Mother told me if they capture his father and If [the Appellant] has to go back to Srilanka they would kill them. So there are family members are really worried about [the Appellant] and his Father.
I believe that if in case, if he ever has to go back home, it could be a danger for his life, so I want to request the officers to concern his problems and allow him to stay in Australia.
Thank you.
[Signature]
Yours truly,
Richard.
[Spelling and grammar as in original].
37 The Delegate rejected the Appellant’s protection claims. As has already been noted, that decision was (or purportedly was as the Appellant contends for in proposed Ground 3) automatically referred to the IAA for review.
THE IAA DECISION
38 The IAA expressed significant concern regarding the Appellant’s credibility. It rejected a number of his claims on the basis of a finding that his evidence was “vague”, “shifting” or “contradictory”.
39 In brief summary, the IAA found as follows:
It did not accept that the Appellant or his family were ever of interest to the CID, as “low level supporters of the TNA, a legitimate political party which now holds a significant number of seats in the national parliament”.
It accepted that the Appellant and his father were “relatively low level” workers for the TNA. It further accepted that the Appellant was on two occasions manhandled and told not to do this work. However, it did not accept that he was subject to any additional harm or harassment.
It did not accept that the Appellant’s mother was assaulted.
It did not accept that the Appellant had been pursued since his departure as a result of his low level work for the TNA, and nor did it accept that he would be pursued if he were to continue such work in the future.
It did accept that the Appellant had been harassed by home guards. However, it found that his description of those events was exaggerated. Specifically:
37. Given the applicant’s vague and shifting evidence about the precise nature of the harassment and assaults he suffered and the reasons why he claims to have been singled out for this mistreatment, I consider that the applicant has exaggerated the events. I do not accept that he was subjected to a sustained and frequent pattern of serious harm by home guards for any of the reasons claimed – because of his ethnicity, his political opinion or activity, because of his association with his father including his father’s position in the community, because his family were wealthy farmers, or because a girl was killed by the applicant’s family’s tractor. I do not accept that the applicant was singled out and mistreated in a manner that other school students were not, because I do not accept the reasons for which the applicant claims that he was singled out. I accept that he may have [been] subject to some bullying and harassment in the context of ethnic and political tensions prevailing after the civil war, however, this finding is based on country information rather than any credible evidence presented by the applicant about the circumstances of his claimed mistreatment. I consider that any mistreatment suffered by the applicant was not serious harm. I am not satisfied that the applicant was, in the past subjected to serious harm amounting to persecution by home guards for any of the reasons in s 5J(1)(a) of the Act, and I am not satisfied that there is a real chance that he would be subjected to such harm if he returns to Sri Lanka in the foreseeable future.
It accepted that the family’s farm equipment was damaged. However, it found that the motive for that event was “not at all clear”.
The IAA referred to the letter the Appellant had provided the Delegate from Mr Alfred as follows:
28. Various letters were submitted with the SHEV application from neighbours and the applicant’s immediate family members which repeat the basic information put forward by the applicant. I give these letters no greater weight than the applicant’s own evidence. They too are vague or speculative as to the events described and who was responsible … Included in the documents is a letter from a Richard Alfred to which, according to the representative’s submission, the delegate should have had specific regard. Mr Alfred says that he knows the applicant from Canberra and visited his family in Sri Lanka, where he witnessed damage to the applicant’s sister’s home; and essentially confirms the applicant’s account of what his mother and sister have told him about what has happened to them in his absence. I give no weight to this letter. I do not know who Mr Alfred is or the precise nature of his association with the applicant; there is no evidence of his travel to Sri Lanka; and at most, he simply repeats what he says he was told about the applicant’s family and their circumstances and the threats they perceive to the applicant’s life. Again, I do not consider that this letter provides independent corroboration of the applicant’s claim such as to overcome the many problems with applicant’s own evidence, nor does it establish the existence of a threat to the applicant’s life (which Mr Alfred says exists), in light of those problems.
It did not accept that the family was subject to ongoing harassment, assault or “any kind of harm” after the Appellant’s departure. While it accepted that his house might have been damaged, it was:
… not satisfied that this had anything to do with the ongoing pursuit of the applicant and his father for political or ethnic reasons, or reasons of personal enmity or jealousy, rather than a random opportunistic crime.
It accepted that if returned, the Appellant might be arrested and charged for having departed Sri Lanka illegally. However, in the absence of him having any actual or imputed connection with the Liberation Tigers of Tamil Eelam (LTTE) he would as a result face at most a short period of pre-trial detention. That detention would flow from the non-discriminatory enforcement of a law of general application. Any poor prison conditions to which the Appellant might be subjected during that period would not be intended to cause harm. While some failed Tamil asylum seekers were mistreated on their return “the country information, considered as a whole, suggests that the key risk factor is whether a Tamil has actual or perceived links to the LTTE; merely being a Tamil, or a Tamil from the north or the east, or being a failed asylum seeker is not enough … to give rise to a real chance of harm on return”.
40 It is helpful, for reasons that will later become clear, to also extract in full the following paragraph of the reasons of the IAA, which addresses information it had before it when making the decision:
21. Of the other media and human rights reports all but one pre-date the delegate’s decision and it is not apparent why they could not have been provided to the delegate before the decision was made. They contain general information about conditions in post-war Sri Lanka and indicate that human rights abuses of some members of the Tamil population, and in particular those suspected of past or present links with the LTTE, continue. The applicant himself has not claim (sic) that he has suffered harm or fears harm from the Sri Lankan security authorities because of any suspected connection with the LTTE, or because he is a Tamil. His only claim about his ethnicity was that Muslims do not like Tamils and want their land. One of the reports addresses this issue very broadly, but I am not satisfied that it contains credible personal information or that there are exceptional circumstances which justify considering it, given its marginal relevance to the applicant’s claims. I am also not satisfied that the other reports contain credible personal information that may have affected the consideration of the applicant’s claims; nor are there exceptional circumstances which justify consideration of this information.
(Footnotes omitted; emphasis added).
41 For those reasons, the IAA concluded that the Appellant did not satisfy the criteria in either s 36(2)(a) or s 36(2)(aa) of the Migration Act. It affirmed the decision of the Delegate not to grant the Appellant a SHEV.
THE FCCA DECISION
42 Only two of the several review grounds pressed by the Appellant in the proceedings before the FCCA remain relevant to this appeal: the failure to consider the risk of harm by virtue of the Appellant’s Tamil ethnicity; and the failure to consider the letter from Mr Alfred, who was referred to before the FCCA as “RA”.
Failure to consider risk of harm by virtue of Tamil ethnicity
43 The Appellant advanced this ground before the FCCA as follows:
The Authority fell into error when it failed to consider a clearly articulated claims [sic] that the Applicant was [at] risk owing to his Tamil ethnicity and a person from [a] particular area and/or denied the Applicant procedural fairness in failing to assess the applicant’s claim and/or giving meaningful consideration of the Applicant’s claims.
Particulars
(a) The Applicant had claimed fear owing to his ethnicity.
(b) The Authority has failed to assess the claim.
(c) The Authority fell into error in carrying out [a] proper review and thereby committed jurisdictional error.
44 The reasoning of the primary judge in declining to uphold that ground was as follows:
20. The question this ground raises is whether there was before the Authority a claim based on the applicant’s ethnicity. Whether such claim was before the Authority turns on whether such claim can be said to arise “tolerably clearly from the material itself”. That also means that when determining whether a claim arises tolerably from the material itself, the material which is said to reveal the claim cannot be construed without reference to the context in which it appears. Ground 1, and the submissions counsel for the applicant makes in support of the ground, relies on two sentences of the applicant’s statement dated 24 February 2016 that formed part of the applicant’s application for a SHEV but without reference to the context in which those sentences appear.
21. When context is taken into account, it is clear the applicant did not claim, and could not reasonably have been taken by the Authority to have claimed, fear of harm based solely on his being a member of the Tamil minority. The applicant claimed fear of harm from particular classes of persons based on particular alleged events. One class of person from whom the applicant claimed fear of harm are Muslims; and the applicant gave two reasons why he feared harm from Muslims. The home guards were Muslim; and Muslims were jealous of Tamils because Tamils were better farmers and were perceived to be more prosperous. The events on which the applicant claimed he feared harm were based, at least to the extent they involved Muslims, on the applicant’s claims that the home guards stopped the applicant whenever they saw him on his way to school or work or to the paddy field, demanded money from him or that he perform chores, and the guards beat the applicant. This is the claim the Authority considered and rejected.
(Footnotes omitted).
45 The learned primary judge thus reasoned that the then applicant had not explicitly claimed that he feared harm, or was exposed to a real risk of harm because he was a member of the Tamil minority per se and such a claim did not arise “tolerably clearly” from the material as had been before the IAA (citing NAVK v Minster for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, at [15]).
Failure to consider the letter from Mr Alfred
46 The Appellant pursued this ground of review before the FCCA in relation to the letter from Mr Alfred, who was described as “RA”, as follows:
The Authority fell into error by failing to properly consider and assess [RA] (at [28]) letter resulting in jurisdictional error.
Particulars
3.1 The Authority asked the wrong question/ignored the claims regarding [RA] and/or failed to have proper regard to the document provided by [RA].
3.2 The Authority failed to consider the risk to the Applicant.
3.3 The Authority committed jurisdictional error.
47 The FCCA summarised the parties’ submissions with respect to Mr Alfred’s letter as follows:
30. In his written submissions, counsel for the applicant submits the Authority did not properly consider its discretion under s.473DD of the Act. Counsel submitted that the “additional information was required to give focus to the “exceptional circumstances” in considering the documents”. The Minister, in his written submissions, submits the Authority considered the RA letter; and he further submits that s.473DD of the Act does not apply to the RA letter because s.473DD of the Act applies to “new information”, as that expression is defined in s.473DC, but the letter was before the delegate and, for that reason, it was not “new information”.
(Footnote omitted).
48 In rejecting that ground of review, the primary judge reasoned that it had properly been open to the IAA to have given Mr Alfred’s letter no weight:
31. The Authority referred to the RA letter but decided to give it no weight. The Authority gave the RA letter no weight because it did not know who RA is, or what his relationship with the applicant is; there was no evidence RA travelled to Sri Lanka; and, “at most, he simply repeats what he says he was told “ (sic) and, for that reason, the Authority did not consider that the RA letter provided “independent corroboration of the applicant’s claims such as to overcome the many problems with the applicant’s own evidence, nor does it establish the existence of a threat to the applicant’s life . . . in the light of those problems”. The Authority considered and properly considered the RA letter.
GROUNDS OF APPEAL
49 In a notice of appeal to this Court filed 20 August 2019, the Appellant relied on the following grounds:
1. The Federal Circuit Court erred by failing to find that the Immigration Assessment Authority was in error by failing to evaluate an integer of the protection claim of the Appellant, namely the risk of relevant harm to him as a result of being Tamil on return to Sri Lanka.
2. The Federal Circuit Court erred by failing to find that the Immigration Assessment Authority was in error by not giving proper, genuine and realistic consideration or otherwise failing to properly evaluate the letter from Richard Alfred dated 03 February 2016.
50 Those grounds replicate, in substance, the two grounds discussed above that the Appellant had advanced before the FCCA.
Proposed Ground 3
51 The Appellant subsequently sought leave to rely on a proposed Ground 3. It was not in issue that that contention had not been advanced before the FCCA. It is as follows:
The IAA lacked jurisdiction in respect of [DSN16] because he is not a ‘fast track applicant’ by reason that he was not, at that time, an ‘unauthorised maritime arrival’. He lost this status because the Minister exercised his personal, non-compellable power to grant [DSN16] a visa, which made him a lawful non-citizen under the Migration Act 1958 (Cth) (the Act).
52 The principles governing the exercise of the discretion to grant leave to raise a new ground on appeal were explained by Kiefel, Weinberg and Stone JJ in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 (VUAX) at [46]-[48]:
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) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].
47 In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
48 The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused …
53 Having regard to the principles in VUAX and other relevant authorities, both parties provided lengthy written submissions with respect to the asserted merit – or lack of merit – of proposed Ground 3. It is sufficient for the purposes of these reasons to indicate that counsel for the First Respondent (the Minister) cited, inter-alia, the reasoning of Perram J in CLM18 v Minister for Home Affairs [2019] FCAFC 170 at [4] in support of his contention that proposed Ground 3 was entirely without merit. By contrast, counsel for the Appellant submitted that Perram J’s reasoning was obiter and had been arrived at without the benefit of a contradictor. He submitted that Perram J’s obiter was in conflict with the considered reasoning of Mortimer J in DBE17 v Commonwealth of Australia [2018] FCA 1307 at [44].
54 I do not purport to do justice to the comprehensive submissions the parties advanced with respect to proposed Ground 3. That is because it became clear during oral argument that their submissions effectively mirrored those that they as respective counsel had filed in proceeding number VID692/2019, BXT17 v Minister for Home Affairs & Anor (BXT17) in respect of a virtually identical proposed appeal ground. It was therefore agreed during the hearing that the Court would hear oral argument with respect to Grounds 1 and 2, and it would then adjourn until after the Full Court had delivered judgment in BXT17 for consideration on the papers (unless either party sought a further oral hearing) as to whether the Court ought grant the Appellant leave to rely on proposed Ground 3, and if so whether it should be upheld.
55 The Full Court, constituted by Markovic, O’Callaghan and Anastassiou JJ, delivered judgment in BXT17 on 12 February 2021 (BXT17 v Minister for Home Affairs [2021] FCAFC 9; BXT17 Full Court). Its reasons, delivered per curiam, reveal that BXT17 was granted leave to advance an appeal ground substantially identical to proposed Ground 3 in this appeal. His appeal had been dismissed.
56 In that circumstance, my Associate on my behalf, sought advice from the parties as to whether either was seeking an opportunity to be further heard. Both parties were content for me to deal with the matter on the papers. The solicitor for the Appellant also responded that the Appellant accepted that Ground 3 could not be upheld in light of the reasoning in BXT17 Full Court being binding upon a single judge of the Court but formally maintained his application for leave to rely on proposed ground 3 “so that, if BXT17 is ultimately overturned by the High Court, he can revive his claim to the benefit of the same ground in this case.”
57 I am satisfied that, as at the time Ground 3 was proposed, and as at the time submissions were advanced in this Court by the parties it had arguable merit. I am also satisfied that the Minister suffered no prejudice by reasons of that ground not having been advanced in the Court below. I will grant leave. However, as the Appellant concedes BXT17 Full Court requires me to conclude Ground 3 must be dismissed.
58 I therefore return to Grounds 1 and 2.
Ground 1
59 It will be recalled that Ground 1 is as follows:
The Federal Circuit Court erred by failing to find that the Immigration Assessment Authority was in error by failing to evaluate an integer of the protection claim of the Appellant, namely the risk of relevant harm to him as a result of being Tamil on return to Sri Lanka.
Appellant’s Submissions
60 The Appellant submits that it was uncontentious before the IAA that he was a Tamil and spoke the Tamil language.
61 Mr Albert submits that a standalone claim that the Appellant required protection due to his Tamil ethnicity had been “squarely put” before the IAA. He submits that although the IAA had addressed the Appellant’s related claims, such as the risk of harm to him by reason of his being a Tamil failed asylum seeker, it had not addressed the issue of whether there was a risk to him by virtue of being Tamil per se.
62 The Appellant submits that there was “extensive” country information before the IAA concerning the mistreatment of Tamils in Sri Lanka.
63 Although there was some disagreement as between counsel as to precisely what country information was before the IAA, I interpolate that on behalf of the Minister, Mr Minson accepted that there was at least some country information before the IAA that had referred to Tamils generically as having been targeted for persecution in Sri Lanka during the relevant period.
64 Mr Albert relied upon that concession as the premise for his submission that it was sufficient to make good his case that the material before the IAA “…does include country information about Tamils as such being targeted. So if it’s ten articles or two articles, in a sense makes no difference to us…because the claim was raised”.
65 In support of his submission that there was a standalone claim before the IAA that the Appellant might face harm simply by reason of his ethnicity, Mr Albert referred to the representations in writing that had been made to it under the heading “Tamil ethnicity”. The then applicant’s submissions had included the following:
Racial identity is viewed as a marker of political allegiance, with acts or relationships that would otherwise be regarded as innocuous gaining greater significance in the eyes of the Sri Lankan authorities. Ethnic identities may hence serve to instigate persecution for reasons of both race and political opinion, even where only one ground is cited.
66 Mr Albert’s written submissions refer to the fact that the Delegate had accepted that such a claim existed and that it had required resolution. He submitted that:
58. [t]he Minister’s delegate recognised a standalone refugee claim based only on [DSN16’s] ethnicity. The delegate expressly accepted that ‘there were ethnic tensions between the majority Muslims… and the minority Tamils in the applicant’s home town’. The delegate then concluded:
I therefore accept that the applicant fears harm because of his Tamil ethnicity.
The delegate later gave detailed consideration as to whether, on the basis of his ethnicity alone, [DSN16] was at future risk of relevant harm. The delegate did so by reference to country information on point, including about the imputed political opinion of Tamils as a source of a risk of harm in the past in Sri Lanka.
…
60. By contrast with the delegate’s recognition and detailed analysis of this standalone protection claim, the Authority stated that [DSN16] ‘has not claimed that he has suffered harm or fears harm… because he is a Tamil’. As the above makes plain, this assertion by the Authority was incorrect. It was apparently on this basis that the Authority, unlike the delegate, did not consider whether [DSN16] was at a future risk of relevant harm solely by reason of his ethnicity.
(Footnotes omitted).
67 Mr Albert addressed the Minister’s responsive submission (summarised below) that the reasons of the Delegate were not relevant in assessing whether the IAA had fallen into error in conducting its de novo review, characterising it as follows:
What gets reviewed by the IAA is the outcome. And so the reasons of the Delegate can be as good as ignored and can’t form part of the Court’s analysis.
68 Mr Albert submitted that that could not be the true position, for two reasons. First, s 473CB of the Migration Act required the Secretary to give the Delegate’s reasons to the IAA. Secondly, s 473DB (which, as Mr Albert put it, is “where the rubber hits the road”) imposed upon the IAA a statutory obligation to consider those reasons: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50.
69 Mr Albert did not dispute that in undertaking its review task it had been open to the IAA to reject the Delegate’s analysis that a standalone claim that the Appellant was at risk of harm due to his ethnicity had arisen from the materials before it. He submitted, however, that if the IAA had so proceeded it would have been required to address why it had done so in its reasons. That it had not addressed that question in its reasons illustrated that it had simply overlooked that claim.
70 Mr Albert submitted that the age at which the Appellant arrived in Australia underlined the inappropriateness of the IAA confining its attention to the specifics of the harm he had claimed to have suffered in Sri Lanka as a child:
My learned friend says “the high point of the claim” and he took your Honour to the passage where my client says, “Home Guard Muslims attacked me because I was Tamil.” … That is what he said. There’s no denying it. But that’s his experience as a 17 year old child of how this manifests.
71 In his particular circumstances, the Appellant’s stated experiences did not define the “outer limit” of his claims. His express and clearly implicit claims had extended to his reasonable fear about what would happen to him as a Tamil adult if he had to return to Sri Lanka. A standalone claim that the Appellant was at risk of harm due to his Tamil ethnicity did arise clearly from the materials.
72 Mr Albert submitted that a distinction must be drawn between the circumstance where a tribunal does not refer to particular document or issue and yet it may be inferred that it simply did not consider particular evidence to be material (as was the case in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431) and a failure to address a claim actually made. As he put it:
In our submission, the case law is clear that one doesn’t get that latitude when it comes to integers of claims. The integer of the claim having arisen has to be dealt with. Now, it can be de dismissed by whatever form of words. But it has to be dealt with.
73 The Appellant thus submits that the learned primary judge had erred when his Honour concluded (at [21]) that the Appellant “did not claim, and could not reasonably have been taken by the [IAA] to have claimed, fear of harm based solely on his Tamil ethnicity”. That claim had been expressly advanced. In failing to address his claim, the IAA had not undertaken its statutory task and had fallen into jurisdictional error.
The Minister’ Submissions
74 The Minister submits that the Appellant’s submissions with respect to this ground are “fundamentally flawed”. Mr Minson first took issue with the Appellant’s reference to the approach taken by the Delegate:
… in reviewing a fast track reviewable decision, the IAA is concerned to review the delegate’s decision, not his or her reasons for that decision. Thus, the fact that, in reaching her decision, the delegate here considered a particular claim, or considered a particular claim in a particular way, is of no moment. As Gageler, Keane and Nettle JJ have observed (Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 [17]):
the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.
(Footnotes omitted except where expressly set out).
75 Mr Minson did not contest Mr Albert’s submission that the IAA had been obliged to consider the Delegate’s reasons. He submitted however that the primary judge had been correct to reject the proposition that “if it doesn’t take the same approach as the Delegate, there’s necessarily jurisdictional error”. Mr Minson referred the Court in that regard to the following passage from the decision of Driver J in CCW16 v Minister for Immigration and Border Protection [2017] FCCA 2 (upheld on appeal in CCW16 v Minister for Immigration and Border Protection [2017] FCA 1002):
76. Further, the fact that the delegate referred to the issue of generalised violence at [94] of his decision did not impose on the Authority an obligation to consider the issue. The delegate had listed the applicant’s claims of persecution at [80] and those claims did not include a claim of generalised violence. I accept that the delegate considered the issue not only in relation to the application of the Refugees Convention, but also in relation to his complementary protection criterion assessment. In my opinion that consideration was not called for. If a delegate exceeds his statutory remit by considering claims not made by an applicant, no obligation of review is thereby created in relation to either the Administrative Appeals Tribunal or the Authority.
(Footnotes omitted).
76 Mr Minson rejected the proposition that it had been open to the primary judge to infer that the IAA had failed to adequately consider the Delegate’s reasons, given that at [3] of its decision the IAA had referred expressly to those reasons as follows:
3. On 22 August 2016 a delegate of the Minister for Immigration and Border Protection (the Delegate) refused to grant the visa. She did not believe that the applicant faced harm in the circumstances claimed. She considered an implied claim that he might be harmed on return to Sri Lanka as a failed asylum seeker who departed illegally, but found on the basis of country information that there was no real chance of serious or significant harm for that reason.
77 Mr Minson further submitted that the Appellant had mischaracterised the reasons of the IAA. In the Minister’s written submissions Mr Minson advanced the contention that the IAA had in fact considered, and rejected, a contextualised claim that the Appellant feared harm due to his Tamil ethnicity:
20. … So much so is apparent from the very passage selectively quoted by the appellant to demonstrate the opposite (at AS [60]). When the appellant’s ellipsis, reproduced at paragraph 18(c) above, is removed and the immediate context provided, the full passage reads: “The applicant himself has not claimed that he has suffered harm or fears harm from the Sri Lankan security authorities because of any suspected connection with the LTTE, or because he is a Tamil. His only claim about his ethnicity was that Muslims do not like Tamils and want their land”.
21. That claim was made in the appellant’s written statement to the delegate that “[t]he Muslim home guards do not like us Tamils because we work hard and relatively speaking are well to do. We own land and are better farmers than they are. They are jealous of us and would like to drive us out of our land” (AB 66). As the IAA later noted (AB 197 [34]), the claim was also made in the SHEV interview, when the appellant said that “the main thing" in the harassment he allegedly suffered at the hands of the home guard on the way to school “is that he is Tamil; their village borders the Muslim area and the Muslims want to kick them out and take their farms”.
22. Ultimately, as the primary judge recognised (AB 233 [21]), that claim, including (contrary to AS [61]) the risk of future harm, was considered and roundly rejected by the IAA (AB 197-198 [37]):
Given the applicant’s vague and shifting evidence about the precise nature of the harassment and assaults he suffered and the reasons why he claims to have been singled out for this mistreatment, I consider that the applicant has exaggerated the events. I do not accept that he was subjected to a sustained and frequent pattern of serious harm by home guards for any of the reasons claimed – because of his ethnicity, his political opinion or activity, because of his association with his father including because of his father’s position in the community, because his family were wealthy farmers, or because a girl was killed by the applicant’s family’s tractor. I do not accept that the applicant was singled out and mistreated in the manner that other school students were not, because I do not accept the reasons for which the applicant claims that he was singled out. I accept that he may have [been] subjected to some bullying and harassment in the context of ethnic and political tensions prevailing during and after the civil war, however, this finding is based on country information rather than any credible evidence presented by the applicant about the circumstances of his claimed mistreatment. I consider that any mistreatment suffered by the applicant was not serious harm. I am not satisfied that the applicant was, in the past subjected to serious harm amounting to persecution by home guards for any of the reasons in s 5J(1)(a) of the Act, and I am not satisfied that there is a real chance that he would be subjected to such harm if he returns to Sri Lanka in the foreseeable future.
23. Similar reasoning was adopted in relation to the damage done to the appellant’s family’s farming equipment in 2012 (AB 198 [38]):
Given the difficulties with the applicant’s evidence, the motive for this incident is not at all clear. … Whilst the applicant seems to be suggesting that the same people were involved, when asked at the SHEV interview who was responsible, he said “we don’t even know”. Regardless of these problems with the evidence, I am not satisfied in any event that the burning of the farm trailer and the attempt to burn the harvester represents harm or a serious threat of harm to the applicant. … [T]here is no basis arising from the credible evidence upon which to be satisfied that there is a real chance this would occur in the future.
24. No allegation is advanced that the IAA’s reasoning in the above regards was illogical or unreasonable, nor could any such allegation be sustained, including because, as the High Court recognised in Minister for Immigration and Ethnic Affairs v Guo, “what has occurred in the past is likely to be the most reliable guide as to what will happen in the future”.
25. To the extent the appellant’s representative (as opposed to “the applicant himself”) identified an implied claim to fear harm from the Sri Lankan security authorities (as opposed to “Muslims”) on account of his ethnicity, the IAA again identified (AB 191) and later rejected that claim, finding that: “the country information, considered as a whole, suggests that the key risk factor is whether a Tamil has actual or perceived links to the LTTE; merely being a Tamil, or a Tamil from the north or the east … is not enough, in my view, to give rise to a real chance of harm on return” (AB 200 [49]).
(Footnotes omitted).
78 Mr Minson submitted that the reasons of the primary judge had at [21]-[22] had correctly upheld the IAA’s reasoning with respect to the Appellant’s contextualised claim to fear harm by reason of Tamil ethnicity. Properly understood that had been a claim confined to the particular circumstances in which it had been relevant. He submitted:
… we fully support the Federal Circuit Court’s decision, which is the holding, is that the claim to fear harm was considered and rejected. It’s only when one attempts to characterise the claim as Tamil ethnicity, full stop, that the primary judge below finds … a claim in those terms was not one that clearly arose from the material, and we support that finding.
Mr Minson submitted that the Court should be reluctant to find that any claim not expressly made “clearly emerges” from the materials before the IAA.
79 Finally Mr Minson submitted that having regard to the underlying realities any such claim as might have been made had been adequately addressed. In that regard he relied on Minister’s written submissions as contended that:
28. … whilst the IAA’s reasons might not have been structured in the same way as the delegate’s, with a specific heading for “Ethnicity and ethnic tensions” (AB 123), it is clear from the above analysis that, insofar as it was obliged to do so, the IAA did at various points in its reasons consider (and reject) the risk of serious harm faced by the appellant on account of his ethnicity.
(Footnotes omitted).
Consideration
80 Mr Minson is undoubtedly correct that the IAA did in fact consider, and had expressly rejected, a number of contextualised claims that the Appellant advanced. However, that establishes no more than that the IAA cannot be criticised with respect to those aspects of its decision making in respect of which the adequacy of its reasoning is not in dispute.
81 However, there appears to be a broader proposition implicit in the submissions Mr Minson advanced on the Minster’s behalf. That proposition is that the IAA’s rejection of all of the Appellant’s specific contextualised claims necessarily was sufficient to permit it lawfully to dispose of any broader generic case the Appellant might have also advanced.
82 However, must that be so? The underlying logic may be tested as follows.
83 Let it be assumed that an applicant for a protection visa has been accepted to be a member of a particular ethnic group. He or she claims that they fear persecution by reason of their religion, ethnicity and imputed political opinions should they be returned to their home country. He or she provides an account of having been subjected to a series of traumatic events. If accepted, that account would show that they had been subjected to past incidents of actual persecution. But let it be assumed that the decision maker is entitled to find that the whole of that account of past persecution is a fabrication and rejects it.
84 In my opinion what then would still remain as requiring consideration would be any unembroidered claim advanced by the applicant to fear persecution on the basis of their ethnicity if returned to their country of origin.
85 The correctness of that analysis can be demonstrated by reference to the paradigm instance that prompted international recognition of refugee rights: the position of persons of Jewish descent objecting to their return to Nazi Germany. All that such a person might falsely advance as an account of their actual experiences of persecution might properly be rejected. But even on that assumption if a similarly evil circumstance was to be replicated today, then self-evidently it would remain necessary for the decision-maker to assess any residual claim that he or she would be at risk of persecution if returned to Nazi Germany by reason of his or her religious and ethnic background alone.
86 However, as Mr Minson submits, it is only if such a claim has actually been made that the duty to consider it arises.
87 At paragraph [21] of its reasons, the IAA stated that the Appellant “himself has not claimed that he has suffered harm or fears harm from the Sri Lankan security authorities because of any suspected connection with the LTTE, or because he is a Tamil”. In the same paragraph, the IAA characterised his claims relating to his ethnicity as having been confined to the contention that “Muslims do not like Tamils and want their land”.
88 However, those statements appear under the heading “Information before the IAA” and in a particular context in which the IAA was then considering only whether or not there were exceptional circumstances as would permit it to give consideration to certain media and human rights reports to which the Appellant had asked it to have regard to as new information. That that is so evident when regard is had to the paragraphs that precede paragraph [21]:
19. As to the media and human rights reports, the delegate dealt with an implied claim that the applicant faced harm on return as a failed Tamil asylum seeker. The applicant could not have known before the decision was made that she would consider and reject this claim. While the delegate considered some reports about the situation of Tamil asylum seekers returning to Sri Lanka, the most recent of these is dated 2014. As the reports provided by the applicant’s representative date from 2015 and 2016, and give the benefit of considering the most up to date information about the situation in Sri Lanka, I am satisfied that in the circumstances, they could not have been provided to the delegate before the decision was made and that there are exceptional circumstances which justify consideration of the reports which are referred to in footnote [12].
20. A report from Tamilnet about the home guards dates from 1997. I am satisfied that this report could not have been provided to the delegate before the decision was made. Given that it concerns a period well before the events described by the applicant took place, when the civil war was in progress, I consider that it is out of date and does not contain credible personal information that may have affected the consideration of the applicant’s claims; nor are there exceptional circumstances which justify consideration of this information.
21. Of the other media and human rights reports …
(Emphasis added).
89 By contrast when the IAA addressed itself to the question of the Appellant’s refugee assessment, it gave no attention to the claim he asserts in these proceedings he had advanced that he would be subject to persecution by reason of his ethnicity standing alone.
90 The primary judge reasoned that notwithstanding that circumstance, it had not fallen into error because the Appellant “did not claim, and could not reasonably have been taken by the [IAA] to have claimed, fear of harm based solely on his Tamil ethnicity”.
91 The difficulty with that finding is that, contrary to the primary judge’s observations there clearly was at least some not insignificant material before the IAA consistent with such a claim having been made. That material included:
(1) The Appellant’s statement of 24 February 2016, in which he had made the following claims:
I quit studying halfway in Year 10. I had to come to Australia in 2012 because I could not stay in my home town. It is a life and death story….
In Kalmunai, we Tamils are a minority group and most of the population is Muslims. The Muslims do not like us and there are ongoing tensions between us.
(2) The reasons of the Delegate, whose decision the IAA was charged with reviewing. It is uncontentious that the Delegate, although rejecting his claim, had acknowledged that he had claimed that “there were ethnic tensions between the majority Muslims… and the minority Tamils in the applicant’s home town”. The Delegate had concluded:
I therefore accept that the applicant fears harm because of his Tamil ethnicity.
(3) The written submissions filed on behalf of the Appellant. Those submissions had included the following passage:
Racial identity is viewed as a marker of political allegiance, with acts or relationships that would otherwise be regarded as innocuous gaining greater significance in the eyes of the Sri Lankan authorities. Ethnic identities may hence serve to instigate persecution for reasons of both race and political opinion, even where only one ground is cited.
92 It cannot be to the point, as Mr Minson submits, that those submissions had been advanced to the IAA on the Appellant’s behalf by his immigration agent rather than by the Appellant himself. Those submissions were not characterised by the IAA as containing new material or as expressing a new claim as would have engaged s 473DE of the Migration Act. Properly understood they simply highlighted and articulated a pre-existing claim as had been made by the Appellant to the Delegate.
93 For the above reasons the primary judge’s reasoning that the passage contained in the Appellant’s statement of 24 February 2016 extracted above “could not reasonably have been taken by the Authority to have claimed … fear of harm based solely on his being a member of the Tamil minority” is unpersuasive.
94 An appeal by way of re-hearing requires an appellate court to decide for itself whether the decision of the primary judge is correct or incorrect. Doing so requires a single judge exercising the Court’s appellate jurisdiction to determine, within the boundaries of the grounds of appeal, whether the IAA took a course that caused it to fall into jurisdictional error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 per Gageler J at [20] and [30].
95 The IAA was subject to a duty to give reasons in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362, Rares J observed at [86]:
Hence, the importance the courts have placed on the absence from the written statement… of some matter that would have demonstrated that the decision was made according to law or not affected by jurisdictional error. A written statement ensures transparency in the tribunal's exercise of a power conferred on it by the Parliament. This transparency is essential… to enable the Court to exercise the judicial power of the Commonwealth in reviewing whether the decision was made according to law or affected by a jurisdictional error
96 The IAA’s otherwise very detailed reasons at no point address the “stand-alone” claim Mr Albert submits the Appellant had advanced.
97 Having regard to what I have set out at [91] I am satisfied that that claim was not only made but also was clearly made. It was, as I have sought to explain, at least potentially, a claim, if accepted, upon which a finding in the Appellant’s favour might have be made. Having regard to the reasoning of Gleeson CJ, McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69], I am entitled to infer in the absence of any reference or discussion as to its merits by the IAA that the claim was overlooked. I draw that inference.
98 In this Court deciding for itself, I am satisfied that the IAA, as Mr Albert submits, did fall into error by failing to give consideration to a plainly articulated claim based on the Appellant being at risk of harm as a member of the Tamil minority. The primary judge’s reasoning that the IAA did not err in that regard cannot be sustained.
99 However, that is not the end point of this Court’s duty. Having concluded that such an error was made it must then give consideration to whether that error was material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 (SZMTA).
100 To answer that distinct question the Court is required to give attention to whether the error operated to deprive the Appellant of the possibility of a successful outcome: in other words, whether the IAA’s decision could realistically have been different had the relevant error not been made: SZMTA at [68], [69] and [71] per Bell, Gageler and Keane JJ.
101 The onus is on the Appellant to satisfy the Court of jurisdictional error, including that the error was material in the relevant sense: SZMTA at [4], [41] and [46].
102 I am unpersuaded that that onus has been discharged.
103 It is not in dispute that the Delegate who had earlier acknowledged the Appellant’s claim to fear persecution by reason of his ethnic status standing later dismissed that claim on the merits having given it extensive consideration. While I am satisfied that that claim was not withdrawn and thus had remained before the IAA nothing in the Appellant’s written submissions went beyond the abstract in challenging the Delegate’s reasoning in that regard.
104 Mr Albert does not suggest that the IAA erred when it reasoned that none of the Appellant’s more specific contextualised claims as it accepted had been made justified it concluding that the Appellant had a well-founded fear of persecution (Migration Act s 36(2)(a)) or faced a real risk of suffering significant harm were he to be removed from Australia and returned to Sri Lanka (Migration Act s 36(2)(aa)).
105 At [42] of its reasons, the IAA addressed the Appellant’s accepted claim of fear of harm by reason of his being returned as a failed Tamil asylum seeker in the following terms:
….I find that he has no profile as a person suspected of personal or family links with the LTTE. UNHCR's most recent (2012) Guidelines for assessing the eligibility of Sri Lankans for asylum' state that there is no longer a presumption of a requirement for protection simply for reason of being of Tamil ethnicity and a prior resident of areas of the country previously under the control of the LTTE, namely the Northern and Eastern Provinces. The Guidelines state that persons suspected of certain links with the LTTE may be in need of international refugee protection, depending on the individual circumstances of their case. There is no evidence before me to suggest that the applicant has a relevant profile or to indicate that there is a real chance that he would be of interest to the authorities because of suspected LTTE links
106 In assessing that specific claim, the IAA had earlier accepted that there were exceptional circumstances which justified it receiving and taking into consideration certain media and human rights information the Appellant had submitted to be relevant to the IAA’s review task. In its assessment of that material the IAA reasoned at [49] as follows:
I have considered the material referred to in the submission provided to the IAA by the applicant's representative. While there are reports of failed Tamil asylum seekers returning to Sri Lanka being detained on arrival at the airport or after returning to their villages, and then being mistreated and subjected to torture particularly if they are detained for prolonged periods, the country information, considered as a whole, suggests that the key risk factor is whether a Tamil has actual or perceived links to the LTTE; merely being a Tamil, or a Tamil from the north or the east, or being a failed asylum seeker is not enough, in my view, to give rise to a real chance of harm on return. In my view, there is no credible evidence before me which points to anything in the applicant's background which would result in his being imputed to have any connection with the LTTE. I find that the applicant does not face a real chance of persecution on returning to Sri Lanka as a failed young Tamil male asylum seeker from Eastern Province who departed illegally, or for any other reason arising from his particular circumstances.
(Emphasis added).
107 I accept that the words to which I have given emphasis appear within a passage responsive to the Appellant’s more specific claim to fear harm by reason of his being a failed Tamil asylum seeker. However, it contains a plainly expressed finding of generality as would also extend to a “stand-alone” claim based on the Appellant’s Tamil ethnicity. Had the IAA given attention to his “stand-alone” claim as I have concluded it ought to have, I am unpersuaded that there is any realistic possibility that it would have reached a different finding.
108 Having regard to the above I am not satisfied that the Appellant has discharged his burden of proving that the error the IAA made was material. I accept Mr Albert’s submission that the error identified in Ground 1 is established but I reject, in the actual circumstances applying, that I should be satisfied that IAA’s decision could realistically have been different had the relevant error not been made.
Ground 2
109 Ground 2 is as follows:
The Federal Circuit Court erred by failing to find that the Immigration Assessment Authority was in error by not giving proper, genuine and realistic consideration or otherwise failing to properly evaluate the letter from Richard Alfred dated 03 February 2016.
Appellant’s Submissions
110 The Appellant submits that the IAA declined to give Mr Alfred’s letter any weight for four reasons: it did not know who Mr Alfred was; it did not know the precise nature of his association with the Appellant; there was no evidence of his travel to Sri Lanka; and what he said was hearsay. Mr Albert submits that that reasoning “demonstrate[s] a failure by the Authority to accord with its obligation to give real, genuine and conscientious consideration to the material before it”.
111 The Appellant submits that it is unclear what the relevance of the IAA not knowing Mr Alfred might be:
It could hardly be the case that an administrative decision maker can reduce the weight of the evidence of a person because they are not known personally to that decision maker.
112 With respect to Mr Alfred’s relationship with the Appellant, Mr Albert submits that:
… the first part of the letter identifies precisely the relationship. In the first part of the letter he says he’s a friend of the applicant, and plainly enough he was a friend who knew him well enough to go and visit his family in Sri Lanka in his absence, so there’s the relationship.
113 With respect to evidence of Mr Alfred’s travel to Sri Lanka, Mr Albert submits that:
[The IAA was] wrong to state that there was no ‘evidence of… travel to Sri Lanka’. Mr Alfred gave that ‘evidence’ in a form which the Authority was entitled to accept, namely his letter. Neither the delegate – to whom the letter was directed – nor the Authority act on sworn evidence only. It follows that the signed letter was ample ‘evidence’ for the purposes of an administrative decision on its own.
114 Mr Albert submits that if the IAA had been “troubled by the veracity of what was said by Mr Alfred, it was well within its power to call Mr Alfred and ask any question it liked of him”.
115 Mr Albert takes issue with the IAA’s finding that the letter was hearsay. He submits that the critical passage is in the following terms:
When I went to Sri Lanka I have visited [DSN16’s] sisters house and on April 2015. His Sisters house was partly damaged by some unknown people, while I was talking to his mother and sister. They stated that, as strangers are search for [DSN16] and his Father, his father is still hiding from them. So I was not able to meet his father. [DSN16’s] Mother told me if they capture his father and If [DSN16] has to go back to Srilanka they would kill them. So there are family members are really worried about [DSN16] and his Father.
116 Mr Albert submits that when regard is had to the fact that the letter writer undoubtedly had some difficulties with English expression, properly understood the letter conveys that the writer had been present and had witnessed the Appellant’s family home being damaged:
Even putting aside the notion that the rules of hearsay do not apply in the Authority, it is incorrect that Mr Alfred was reporting to the Authority only what he heard from others. Read fairly (that is, ignoring some irregular punctuation), Mr Alfred told the delegate that in April 2015, while he was talking to [DSN16’s] mother and sister, their house was damaged by strangers who stated that they were searching for [DSN16]. This is not what he was told, it was what he witnessed himself.
117 Accordingly Mr Albert submits that the primary judge fell into error by finding at [31] that the IAA “properly considered” that letter.
118 The IAA’s decision to give no weight to Mr Alfred’s evidence, Mr Albert further submits, could “just as appropriately be dealt with under the label of legal unreasonableness”:
Legal unreasonableness ‘is not definitional, but one of characterisation – it ‘is a conclusion’ where a decision ‘lacks an evident or intelligible justification’. ‘[I]llogicality or irrationality may be considered not only in relation to the end result, but also to fact finding which leads to the end result.’ The Court’s task in this context is ‘to assess the quality of the administrative decision’ informed by ‘fundamental values’ anchored in the common law tradition. Determining unreasonableness is an ‘evaluative process’. It is ‘a translation of the “human into the legal”. Applying that case law to the Authority’s approach to Mr Alfred’s important evidence leads to the conclusion that the Authority’s decision was infected by jurisdictional error in this way also.
…
So there is no dispute between the parties that the IAA can choose to give no weight to particular material. We say that is open, as a matter of principle, which is what SZSSJ deals with. We say the error here is in the reasons adopted by the tribunal for reaching that conclusion, which is to say we skirt entirely the case law that my learned friend has placed greatest weight on, because where we say your Honour’s focus should be is on the identified reasons and the lack of rational basis for them.
(Footnotes omitted).
Minister’s Submissions
119 Mr Minson submits that reasons given by the IAA for giving no weight to the letter “rationally bore on that issue”:
32. ... In particular, it was more than open to the IAA to read the letter as repeating what the author was told by the appellant’s mother and sister about damage to the appellant’s sister’s house, rather than as indicating that the author was present when the damage was done. That is, it was more than open to the IAA to read the phrase “while I was talking to his mother and sister” as qualifying the sentence beginning “[t]hey stated” rather than the previous sentence: cf AS [69.d].
120 On the Minister’s behalf Mr Minson submits that once it is accepted that the IAA had a rational basis for taking the view it did as to as to the letter being mere hearsay then consistently with Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 per Gummow and Hayne JJ at [197], the weight to be accorded to the letter was entirely a matter for the IAA.
121 As to Mr Albert’s submission that this Court should conclude that on its true construction the letter conveyed a first-hand account of what the author had seen, and not (as the IAA had understood it) a hearsay account of what he had been told by the Appellant’s mother and sister, Mr Minson refers to the reasoning of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at [131]:
If probative evidence can give rise to different processes of reasoning … and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from the evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another
122 Mr Minson takes issue with the Appellant’s attack on the IAA having stated that “I do not know who Mr Alfred is or the precise nature of his association with the applicant” as follows:
There’s a suggestion in the appellant’s written submissions that the Authority is there saying that [the decision-maker] doesn’t personally know the author of the letter. With respect, that’s absurd. The way to read that is that he doesn’t know the precise nature of their association with the applicant. He doesn’t really know who Mr Alfred is. It might appear from the face of the letter that he’s a friend, but it goes no higher than that. In relation to the second reason, there’s no evidence of his travel to Sri Lanka. The appellant says, well, the letter itself is evidence. The submission is that that should be read as meaning there’s no independent or corroborating evidence beyond the letter itself of his travel to Sri Lanka.
123 Mr Minson submits that the Appellant is inviting the Court simply to disagree with the IAA’s assessment of the factual matters to which it referred. That would involve a “slide into impermissible merits review”: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [34]-[37].
Consideration
124 I accept the Minister’s submissions. I reject that it is open for his Court to conclude that the IAA’s decision to give the letter no weight was made without it having given “real, genuine and conscientious consideration to the material before it”. I reject the proposition that the decision-maker’s reasoning lacked a rational basis.
125 While I accept Mr Albert’s submission that the grammar and syntax of the letter does not in terms compel a finding that the writer’s observations must have been characterised as hearsay, I also accept Mr Minson’s submission that the IAA was entitled to have understood that the writer was purporting to convey what he had been told by the Appellant’s mother and sister not that he had been present at the time when that damage was allegedly done.
126 Any reading of the letter must reckon with its odd punctuation. The critical part of the text is as follows (original punctuation retained):
When I went to Sri Lanka I have visited [the Appellant’s] sisters house and on April 2015. His Sisters house was partly damaged by some unknown people, while I was talking to his mother and sister. They stated that, as strangers are search for [the Appellant] and his Father, his father is still hiding from them.
127 For the writer to have put a full-stop after “2015” makes no sense however the letter is to be understood. Mr Minson submits that the comma after “unknown people” is the obvious place where the first full stop would be if the writer had punctuated what he was writing correctly. The first sentence would then then read:
When I went to Sri Lanka I have visited [the Appellant’s] sisters house and on April 2015 [h]is [s]isters house was partly damaged by some unknown people.
128 It would continue, substituting correct punctuation:
[W]hile I was talking to his mother and sister [t]hey stated that, as strangers are search[ing] for [the Appellant] and his [f]ather, his father is still hiding from them.
129 The reading for which Mr Albert contends is not more grammatically sound nor objectively more correct than that adopted by the IAA. Applying the usual rules of grammar to that part of the letter on which Mr Albert relies to establish that the writer was an eyewitness of relevant events would require the “they” (those who the writer states had told him about searching for the Appellant’s father) to be the same unknown people who were destroying the property. That is a wholly implausible reading.
130 To read the phrase “while I was talking to his mother and sister” as qualifying the sentence beginning “[t]hey stated” rather than the previous sentence is at least an equally plausible reading of that text.
131 Having regard to what was stated by Crennan and Bell JJ in SZMDS at [131], the view taken by the IAA that the account was hearsay of unknown provenance such that the letter should be given no weight IAA does not reveal reviewable error.
132 The Appellant’s characterisation of the IAA’s statement that “I do not know who Mr Alfred is or the precise nature of his association with the applicant” is entirely implausible. All that the IAA was doing in making that observation was to identify that it had nothing before that would enable it to form any robust view as to the credibility of the representations (whether properly characterised as hearsay or not) made in that letter. It is uncontentious that the IAA was told nothing about the author of the letter or his history with respect to the Appellant.
133 The reasons given by the IAA that no weight should be given to the letter were available to it, and the reasoning process behind that conclusion was not neither illogical nor implausible.
134 Ground 2 is not made out.
Conclusions
135 For the reasons I have given I grant leave to the Appellant to rely on proposed Ground 3.
136 Grounds 1, 2 and 3 will be dismissed.
137 Unless either party seeks a different order, within 7 days of the publication of these reasons the Court will order that the Appellant pay the Minister’s costs as agreed, or in default of agreement as may be assessed. If either party seeks a different order they are to file and serve short written submissions of no more than 2 pages prior to the expiry of that period and the other party may file and responsive submissions similarly limited within 7 days of being so served. The Court will determine any question of costs arising on the papers.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr. |
Associate:
