Federal Court of Australia

DFL16 v Minister for Immigration and Border Protection [2021] FCA 936

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to file the Amended Notice of Appeal dated 3 August 2020 and leave to raise arguments concerning the lawfulness of the decision of the Immigration Assessment Authority which were not raised in the Federal Circuit Court of Australia.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The appellant in this matter, who has been assigned the pseudonym DFL16, has appealed to this Court from a judgment of the Federal Circuit Court of Australia handed down in December 2019. In that judgment, the Circuit Court dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority. The decision by the Authority was to affirm a decision of a delegate of the then Minister for Immigration and Border Protection (now the Minister for Home Affairs) to refuse his application for a protection visa.

2    For the reasons that follow, the appellant’s appeal must be dismissed.

UNSUCCESSFUL VISA APPLICATION

3    The appellant is a citizen of Sri Lanka. He arrived in Australia on a boat in 2012 in circumstances which made him an “unauthorised maritime arrival” for the purposes of the Migration Act 1958 (Cth). The result was that he could not validly apply for a visa unless the Minister gave him a notice pursuant to s 46A(2) of the Act that allowed him to do so. The Minister eventually gave the appellant such a notice and the appellant duly applied for a protection visa in December 2015.

4    The appellant claimed that Australia owed him protection obligations because he had a well-founded fear that he would be persecuted, or that there was a real risk that he would be seriously harmed, if he returned to Sri Lanka on account of his Tamil ethnicity and the perception held by the Sri Lankan government or “authorities” that he was opposed to the government and was an “enemy of the state”.

5    The appellant’s claim that he would be persecuted or seriously harmed upon return to Sri Lanka hinged on certain incidents that he said had occurred prior to his departure from Sri Lanka. In particular, he claimed that in August 2012 he received a letter instructing him to report to the local police station. When he did so, he was interrogated and tortured that day and the following two days. The interrogation was said to have been related to the fact that the Sri Lankan army had found some ammunition and weapons in a house which was near his house. The appellant claimed that a neighbour had told the army that he was involved and knew about the ammunition. The appellant claimed that he was required to report to the police station again, but instead fled Sri Lanka.

6    On 26 August 2016, a delegate of the Minister refused to grant the appellant a protection visa. The delegate was not satisfied that the appellant met the criteria for a protection visa in ss 36(2)(a) and (aa) of the Act. The delegate did not accept that the appellant’s claims concerning his interrogation and torture by the police were credible and did not accept that the appellant was of any adverse interest to the Sri Lankan authorities on account of his Tamil ethnicity or any actual or imputed political opinions or associations. It followed that the delegate was not satisfied that the appellant had a well-founded fear of persecution, or that there were substantial grounds for believing that there was a real risk that the appellant would suffer significant harm, if he was removed from Australia and returned to Sri Lanka.

THE AUTHORITY’S REVIEW AND DECISION

7    The delegate’s adverse decision in respect of the appellant’s visa application was referred to the Authority for review pursuant to the “fast track” review procedures in pt 7AA of the Act. That was because it was a “fast track reviewable decision” as defined in s 473BB of the Act, essentially because the appellant was an unauthorised maritime arrival.

8    The Authority conducted its review of the delegate’s refusal of the appellant’s visa application “on the papers” as was effectively required by s 473DB of the Act.

9    Section 473DB of the Act requires the Authority to conduct its review by considering the “review material”, which is essentially the material that was before the Minister or the delegate, without accepting or requesting “new information” and without interviewing the “referred applicant”. That is subject to the Authority’s discretion, under s 473DC of the Act, to get such “new information”, being information which was not before the Minister but which the Authority considers “may be relevant”. Section 473DD provides, however, that the Authority must not consider any new information unless it is satisfied of two matters: first, that there are “exceptional circumstances to justify” that course; and second, that the new information “was not, and could not have been, provided to the Minister before the Minister made the decision” in relation to the relevant visa application and was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims”.

10    In its Decision and Reasons dated 10 October 2016, the Authority stated that it had regard to the review material: Reasons at [3]. The Authority also noted that it had considered whether certain additional information which was contained in a submission which the appellant’s migration adviser had sent to the Authority, or in documents annexed to or provided with that submission, was new information to which it was permitted to have regard. The Authority indicated that it would have regard to the content of the submission to the extent that it consisted of “commentary and legal argument” concerning the delegate’s decision because that commentary and argument was not “new information”: Reasons at [4]. As for the documents annexed to or provided with the submission, the Authority determined that those documents comprised new information but that there were no exceptional circumstances which justified it considering that new information: Reasons at [5]-[7].

11    It should be noted in this context that the appellant did not dispute or challenge the Authority’s decision not to have regard to the documents which it considered comprised new information. As will be seen, however, one of the appellant’s proposed amended grounds of appeal involves the contention that the Authority unreasonably failed to exercise, or consider exercising, its discretion under s 473DC(3) of the Act to “invite” the appellant to “give new information orally or in writing”.

12    The Authority gave detailed consideration to the appellant’s claims, in particular his claim that he was interrogated and tortured by the police in August 2012. The Authority’s consideration of that claim was based on what the appellant had said about that alleged incident at various stages of the administrative process which culminated in the delegate’s decision to refuse his visa application. Those stages included “arrival” and “entry” interviews conducted by officers of the Minister’s department, the lodging of the visa application itself, which involved the appellant providing a statutory declaration which included an account of the alleged incident, and an interview conducted by the delegate. The appellant also provided some documents to the department which were said to evidence or corroborate his claims.

13    The problem for the appellant was that the Authority found that there were numerous inconsistencies and contradictions between the accounts of the incident that the appellant had given during the various interviews and in the written material and documents he had provided. The Authority also considered that some aspects of the appellant’s account were implausible.

14    It is unnecessary, at this point at least, to give a detailed account of the Authority’s reasons and findings concerning what it considered to be the inconsistencies, contradictions and implausible aspects of the appellant’s evidence and claims. It suffices to note that the Authority ultimately concluded, largely as a result of those problems with the appellant’s evidence and claims, that it did not accept that the appellant had been interrogated and tortured as he had claimed. Indeed, the Authority found that the appellant had fabricated that claim and that at the time he left Sri Lanka he was “not a person of interest to the authorities” in Sri Lanka: Reasons at [26]. As a result, the Authority was not satisfied that the appellant had a well-founded fear of persecution in Sri Lanka, or that there were any grounds for believing that there was a real risk that the appellant would suffer significant harm if returned to Sri Lanka, on account of any actual or imputed political opinion: Reasons at [30]-[31] and [53].

15    The Authority also considered and rejected the appellant’s claims that he had a well-founded fear of persecution, or that there were grounds for believing that he would suffer significant harm, on account of his Tamil ethnicity and the fact that the Sri Lankan authorities would view him as an illegal departee and failed asylum seeker: Reasons at [32]-[49] and [54]-[56]. It is unnecessary to consider the Authority’s reasons and findings in that regard as they were not the subject of challenge in the Circuit Court and are not the subject of the appellant’s proposed grounds of appeal.

PROCEEDINGS IN THE CIRCUIT COURT

16    The appellant applied to the Circuit Court for judicial review of the Authority’s decision.

17    It would appear that the appellant was initially legally represented, at least as at the time his application was filed in the Circuit Court. That application was signed and certified by a lawyer pursuant to s 486I of the Act.

18    The appellant’s application as filed in the Circuit Court contained a single ground upon which the Authority’s decision was challenged. That ground was that the “Authority acted unreasonably in not exercising its power under s 473DC(3) to invite the [appellant] to give new information orally or in writing”. The particulars of that ground appeared to hinge on the proposition that the Authority had made adverse credibility findings on the basis that certain claims made by the appellant in support of his visa application had not been referred to in the appellant’s “earlier interviews” (presumably the entry and arrival interviews), but that those interviews were not before the Minister when the decision was made. The earlier interviews were therefore said to comprise or constitute new information. The suggestion thus appeared to be that the Authority acted unreasonably in not exercising its discretion in s 473DC(3) of the Act to invite the appellant to give it new information, being information concerning the claims that had not been referred to in the earlier interviews. It was also contended that the Authority erred in not giving the appellant the opportunity to comment on the adverse credibility finding. The particulars also included an allegation of apprehended bias.

19    It would seem that the lawyer who prepared the appellant’s application at some stage ceased to act for the appellant. The appellant accordingly appeared unrepresented at the hearing in the Circuit Court. It would seem, however, that the appellant nevertheless pressed the ground of challenge as particularised in the application which had been prepared by his lawyer.

20    The primary judge rejected the appellant’s challenge to the Authority’s decision and dismissed the application: DFL16 v Minister for Immigration [2019] FCCA 3480 (Judgment).

21    It is unnecessary to consider at length the primary judge’s reasons for dismissing the appellant’s application. That is because the appellant’s proposed grounds of appeal raise new arguments and grounds that were not raised before, and were therefore not addressed by, the primary judge. So much so was acknowledged and conceded by counsel who appeared for the appellant on the appeal. The proposed appeal grounds and the appellant’s submissions in support of them do not engage at all with the primary judge’s reasons for judgment.

22    It should nonetheless be noted that the primary judge rejected the appellant’s contention that records of the arrival, entry and the delegate’s interviews were not before the Minister and were therefore new information under s 473DC of the Act: Judgment at [24]. The primary judge also rejected the appellant’s contention that the Authority did not consider exercising the discretion under s 473DC(3) of the Act (Judgment at [31]) and found that, in any event, even if the Authority did fail to consider, or decided against, exercising that discretion, that was not unreasonable in the circumstances: Judgment at [32]-[34]. The primary judge also noted that there was not a “skerrick of evidence” in support of the contention of apprehended bias: Judgment at [35].

LEAVE TO RAISE NEW GROUNDS

23    The appellant’s notice of appeal, which appears to have been prepared by the appellant without the benefit of legal advice or assistance, contained six grounds. None of the grounds were in an appropriate or intelligible form or raised any proper grounds of appeal.

24    At some point in time, however, the appellant secured legal representation. Written submissions filed on the appellant’s behalf, prepared by counsel, noted that the appellant did not press any of the grounds identified in the filed notice of appeal and foreshadowed that the appellant proposed to rely on two new grounds of appeal. The precise nature of those two grounds was not entirely apparent from the submissions, but eventually a draft amended notice of appeal was produced and provided to the Minister and the Court.

25    The first of the new grounds (ground 7) was that the Authority had “acted unreasonably in not exercising its power under s 473DC(3) to invite the [appellant] to give new information orally or in writing”. The particulars of that ground, while not easy to comprehend, differed from the particulars relied upon in respect of the similar ground raised in the Circuit Court. The particulars comprised a list of findings made by the Authority which were said to involve “material errors”, or were said to be “open to … explanations which could have been given by the [appellant] for clarification”.

26    The second new ground (ground 8) was that the Authority “made errors of fact and/or failed to properly consider the material before it and/or apply intellectual engagement in considering the material before it, thereby coming to unreasonable or irrational findings”. The particulars of this ground were said to be the same as the particulars to ground 7.

27    It was acknowledged that neither of the two new grounds had been the subject of argument in the Circuit Court and that accordingly it was necessary for the appellant to obtain the Court’s leave to raise those grounds. That was confirmed by the appellant’s counsel at the hearing. It was submitted on the appellant’s behalf that the new grounds relied upon “uncontroverted facts” or a “point of construction or of law”, that the Minister would not be prejudiced in any way if leave were to be granted and that it was therefore in the interests of justice for leave to be granted. At the hearing, counsel also relied on the fact that the appellant was unrepresented at the hearing in the Circuit Court.

28    Leave to raise new arguments on appeal should not too readily be granted, particularly in the case of appeals from the Circuit Court concerning the judicial review of migration decisions. That is because such a practice would be contrary to the legislative scheme in the Act, specifically s 476A, which explicitly limits the Court’s original jurisdiction in such matters: AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452; [2015] FCA 804 at [14]. It has been said, in the context of appeals involving migration decisions by the Administrative Appeals Tribunal, that if the Court too readily permits appellants to raise new arguments on appeal, that would have the result that the Court would become, in effect, the “initial supervisory court in relation to the Tribunal’s decision, contrary to the express intention of the Migration Act”: Minister for Immigration and Border Protection v Aulakh (2018) 265 FCR 143; [2018] FCAFC 91 at [107]. The same reasoning applies in the case of appeals from the Circuit Court in respect of decisions made by the Authority.

29    The appellant provided no reasonable or satisfactory explanation for why he did not raise either of the two new arguments he wanted to raise on appeal when his case was heard in the Circuit Court. While it may be accepted that the appellant was not represented when his review application was heard in the Circuit Court, he was initially represented. There was no explanation for why the arguments concerning the unlawfulness of the Authority’s decision which are included in the proposed amended notice of appeal were not included in his application in the Circuit Court which had been prepared and certified by his then lawyer. Nor was there any evidence or explanation whatsoever for why the appellant was not represented at the hearing in the Circuit Court.

30    The Minister did not suggest that he suffered any prejudice because the appellant’s new arguments were not raised in the Circuit Court. He did not suggest that any of the arguments could, if they had been raised in the Circuit Court, have been met by evidence adduced by the Minister. That circumstance alone, however, does not justify the grant of leave, particularly given the absence of any reasonable explanation for why the grounds were not raised in the court below.

31    In determining whether leave to raise the new grounds should be granted, it is necessary to give some consideration to the merits of the new grounds or arguments. Obviously the Court would be more willing to grant leave to raise new arguments if the arguments appeared, at least at an impressionistic level (cf MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [66]), to have some merit or to be at least reasonably arguable. There could, conversely, be little reason to grant leave if the new grounds could readily be seen to have little or no merit.

Proposed ground 7 – Alleged failure to consider getting new information

32    The appellant’s written and oral submissions in support of this proposed ground asserted that the Authority erred in a jurisdictional sense because it failed to consider exercising its discretion in s 473DC(3) of the Act to invite him to give new information. The precise nature of the new information that the appellant should have been invited to give was not entirely clear, but in essence it was said to be information in relation to, or in response to, four relevant findings or observations made by the Authority in its reasons.

33    The first of the relevant findings or observations was the Authority’s finding or observation that the appellant had given the department a copy of a letter sent to the Human Rights Commission of Sri Lanka which stated that the appellant was “sent a letter requiring him to attend at the Police Headquarters in Colombo on 30 August 2012”: Reasons at [23]. That finding was said to be erroneous because the letter to the Human Rights Commission could equally be read as suggesting that the appellant received a letter on 30 August 2012 which required him to attend the Police Headquarters. That alleged error or misreading of the letter by the Authority was said to be relevant or material because the Authority found that the letter was inconsistent with another letter which the appellant had provided to the department which indicated that the appellant had received a letter on 30 August 2012 which required him to attend Police Headquarters: Reasons at [25]. In the appellant’s submission, there was in fact no such inconsistency and he should have been asked to give “new information” concerning the letters to that effect.

34    The second of the relevant findings or observations was the Authority’s finding or observation that there was an inconsistency between a letter which the appellant had provided to the department and his evidence that “since taking his passport in October 2012, the SLA [Sri Lankan Army] has not come looking for him and that the SLA has not targeted his parents as they are quite old”: Reasons at [25]. The letter that was said to contradict this evidence was a letter dated 6 November 2013 from “Grama Niladhari’s Office” which stated that the appellant had told a Grama Officer that “[a]fter his departure security forces have gone to his house and inquired about him from his parents” and that “on many occasions security forces and unidentified armed group have gone to their house and threatened them to produce their son … or inform his whereabouts [sic]”.

35    The appellant contended that there was no inconsistency between his evidence and the letter because the “security forces” included, but were not limited to, the army. There was therefore no inconsistency between his evidence that the army had not come looking for him and the statement in the letter that the security forces had come looking for him. The suggestion appeared to be that members of the security forces who were not in the army had visited his parents’ house. In the appellant’s submission, he should have been asked to give the Authority new information to explain why there was in fact no inconsistency, including that security forces other than the army had come looking for him.

36    The third of the relevant findings or observations by the Authority was its finding or observation that there was an apparent inconsistency between the appellant’s evidence, in a statutory declaration, that he received a letter from the police on 20 August 2012 instructing him to attend for questioning the next day and a letter which he provided to corroborate that evidence which stated that the appellant was to attend the police station on 20 August 2012. The Authority found that it did not accept that the appellant would have received a letter on 20 August 2012 which requested him to attend the police station on that day: Reasons at [15]. The appellant submitted that he should have been asked to give new information which clarified or explained this apparent inconsistency.

37    The fourth of the relevant findings or observations concerned a finding by the Authority that the appellant’s explanations for why he was “targeted by the authorities for questioning” about the weapons found in the nearby house were not credible: Reasons at [21] and [22]. The appellant submitted that the explanations which he had given in that regard when interviewed by the delegate obviously involved an element of conjecture or “guessing”. He contended that, in those circumstances, he should have been asked to give new information about the explanations. That new information was said to be that he was simply guessing when he gave those explanations to the delegate.

38    There is no merit in the appellant’s contention that the Authority erred jurisdictionally by unreasonably failing to consider exercising its discretion under s 473DC of the Act to invite the appellant to give new information, or to otherwise get new information, concerning any of the four topics to which reference has just been made. Indeed, the appellant’s arguments in support of this proposed ground are misconceived.

39    The relevant statutory provisions concerning the Authority’s exercise of its power to review a fast track reviewable decision were referred to earlier. The critical points to emphasise about the operation of those provisions are: first, s 473DB(1) of the Act indicates that the Authority must ordinarily conduct its review on the basis of the material provided to the Authority under s 473CB, which in general terms is the material which was before the delegate, without accepting or requesting new information; second, s 473DC(2) makes it clear that, while the Authority has a discretion to get new information, it does not have a duty to get, request or accept, any new information, whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances; and third, s 473DD relevantly provides that the Authority can only consider new information in exceptional circumstances.

40    It may be accepted that the Authority’s powers to get and consider new information pursuant to s 473DC of the Act are “conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness”: ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928; [2020] HCA 34 at [3] and the cases cited therein. It can also be accepted that “there may be circumstances in which it would be legally unreasonable [for the Authority] to fail to consider exercising the discretion under s 473DC”: see CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38] and the cases cited therein. There must, however, be some “factual foundation from which it can be inferred that the Authority failed to consider” exercising its discretion: see BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35; [2018] FCAFC 114 at [41]. In any event, even if it can be inferred that the Authority did not consider exercising the discretion in s 473DC, that does not necessarily amount to an error, let alone a jurisdictional error: DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43 at [37]-[39].

41    There is, in the particular circumstances of this case, no factual foundation from which it can be inferred that the Authority failed to consider exercising its discretion to invite the appellant to give new information about any of the four issues which have been identified by the appellant. It might equally be inferred that the Authority considered exercising the discretion, but decided not to invite the appellant to give, or to otherwise get, new information about those four issues, or any other aspect of the appellant’s case. Plainly the Authority was aware that it had the discretion to get and consider new evidence because it gave consideration to whether documents that had been provided along with the appellant’s submission constituted new information that it was permitted to have regard to.

42    More fundamentally, even if it could be concluded that the Authority failed to consider exercising its discretion to invite the appellant to give new information about any of the four matters now identified, or determined not to exercise its discretion in relation to those four matters, or any other matter, there is no basis for finding that the Authority’s failure or determination in that regard was so unreasonable as to constitute jurisdictional error. That is so for a number of reasons.

43    First, all of the interviews and documents that were the subject of the four findings or observations by the Authority were also before the delegate. Like the Authority, the delegate considered that there were inconsistencies and contradictions between the various accounts given by the appellant and the documents he relied on. The appellant must have been aware from the delegate’s decision that the credibility of his evidence was in issue and that there were issues about the consistency of his evidence and whether it was consistent with the documents he had submitted.

44    The appellant, through his adviser, provided detailed written submissions about the delegate’s decision, including findings that the delegate made concerning inconsistencies and contradictions which largely mirror those that were eventually made by the Authority. Importantly, the appellant did not contend or suggest, at that point, that the Authority should invite him to give new information in relation to any of the inconsistencies or issues concerning his evidence that had been referred to in the delegate’s reasons. In any event, as noted earlier, the Authority had regard to the submissions that were made on the appellant’s behalf, including those that related to the delegate’s reasoning and findings concerning inconsistencies in the appellant’s evidence, at least insofar as they consisted of “commentary and legal argument” in respect of the delegate’s decision. The effect of the appellant’s arguments concerning proposed ground 7 is that he should have been given yet a further opportunity to explain, justify or clarify inconsistencies which were apparent from the evidence and material he had relied on.

45    Second, the course that the appellant contends that the Authority should have taken is fundamentally at odds with the statutory scheme in relation to fast track reviews by the Authority. The essence of the statutory scheme is that, other than in exceptional circumstances which justify the consideration of further information, the Authority’s review will be “on the papers”: s 473DB of the Act. It is not generally incumbent on the Authority, if it doubts elements of a referred applicant’s claims, to request the referred applicant to give further or better evidence about his or her claims, or to clarify or explain the evidence that he or she has already given, or to reconcile that evidence with the documents or other material that had been provided. That is what the appellant effectively contended the Authority should have done in his case. He has failed to demonstrate why reasonableness demanded or required that exceptional course to be taken in the particular circumstances of his case.

46    Third, this case is far removed from cases such as Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 2010, where the Full Court found that it was legally unreasonable for the Authority not to consider getting new information which it knew that it did not have, but that the referred applicant was likely to have: see in particular CRY16 at [82]. The new information in CRY16 concerned information about whether it would have been reasonable for the referred applicant to relocate to another part of the country from which he had fled. That was not an issue which was addressed at all in the delegate’s decision or in the material which had been before the delegate.

47    Fourth, the appellant’s submissions depend to a certain extent on the proposition that the four relevant findings or observations by the Authority were somehow erroneous, or open to doubt. As discussed in more detail in the context of proposed ground 8, none of the findings or observations which the appellant effectively seeks to impugn are illogical, irrational or unreasonable in any, or any material, respect. They were each open on the material which was before the Authority. Moreover, none of the four findings or observations could be said to be critical, or even particularly significant findings or observations, having regard to the Authority’s reasons as a whole. Indeed, some of them could fairly be seen as having little or no real significance.

48    Fifth, the appellant gave no real indication of the exact nature or content of the new information which he contended the Authority should have sought and obtained from him. The most that was, or could be, said in that regard was that the appellant would have given some further evidence which would somehow explain, or clarify, or justify what could otherwise fairly be seen to be inconsistencies and contradictions in the evidence and documents relied on by him before the delegate. Whether the appellant’s further evidence would have been able to assuage the Authority’s concerns about the credibility or reliability of his claims and evidence as a whole is, at best, doubtful.

49    Sixth, there is nothing to suggest, and there was nothing before the Authority to suggest, that any new information which the appellant could have given in respect of the four findings or observations made by the Authority could or would have satisfied the requirements in s 473DD of the Act. As noted earlier, those requirements are relevantly that the “Authority is satisfied that there are exceptional circumstances to justify considering the new information” and that the information “was not, and could not have been, provided to the Minister” before the decision in relation to the visa was made or comprised “credible personal information which was not previously known and, had it been known, may have affected the consideration” of the appellant’s claims.

50    It is, in all the circumstances, impossible to see how the Authority’s failure to get, or consider getting, any new information from the appellant, the precise details of which are at best unclear, could be said to be unreasonable. The appellant’s contention to the contrary has no merit.

Proposed ground 8 – Unreasonableness

51    The appellant’s written and oral submissions in support of this ground were directed at the same four findings or observations which have been identified and considered in the context of proposed ground 7. The appellant’s contention was, in effect, that each of those four findings or observations was wrong, or unsupported by the material which was before the Authority, or was otherwise irrational or illogical. It followed, so the appellant submitted, that the Authority’s decision was legally unreasonable.

52    Defective, illogical, or irrational reasoning or fact finding may support a finding that the ultimate decision or exercise of discretion was legally unreasonable, particularly where the illogicality relates to a critical matter upon which the decision or exercise of discretion turned: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2020] HCA 16 at [132]; see also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62]; Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [54]. Illogicality or irrationality in this context, however, must mean something more than emphatic disagreement with the reasoning or findings: SZMDS at [124]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61].

53    For an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: SZRKT at [148]; see also SZMDS at [40]. A high degree of caution must generally be exercised before concluding that a finding is irrational or illogical in order to ensure that the Court does not embark impermissibly on “merits review”: SZMDS at [96]; SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 at [14]-[15]. An administrative decision-maker’s reasons should not be the subject of overzealous scrutiny: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

54    None of the four findings or observations of the Authority which have been identified come even close to constituting the sort of extreme illogicality or irrationality that could support a finding of unreasonableness. Indeed, for the most part the findings or observations would appear to have been well open on the material that was before the Authority. Nor could it be concluded that any of the four findings or observations were critical to the Authority’s decision in any event.

55    As for the first of the four findings or observations, while the letter to the Human Rights Commission of Sri Lanka might perhaps be said to have been open to different interpretations, it could scarcely be said to have been illogical or irrational for the Authority to read it in the way it did at paragraph 23 of the Reasons. That interpretation of the letter was at least open to the Authority. In any event, the Authority’s finding or observation about the letter was far from important, let alone critical, to its overall findings concerning the credibility of the appellant’s evidence. It formed the basis of but one of a number of findings concerning inconsistencies and contradictions in the appellant’s evidence.

56    It was equally open to the Authority to find that there were inconsistencies in the appellant’s evidence concerning whether, after his departure, the army had visited his parents’ house inquiring as to his whereabouts. That is so even if there was some merit in the appellant’s point that there may have been no inconsistency because the “security forces” included people or organisations other than the army. It is nonetheless difficult to reconcile the two different accounts given by the appellant on this topic. It was at the very least open to the Authority to consider that there was an inconsistency between the two accounts and its finding to that effect could not be said to involve any illogicality or irrationality, let alone extreme illogicality or irrationality.

57    As for the third finding or observation, the appellant effectively conceded that there was an apparent inconsistency in the evidence about when he received the letter which requested his attendance at the police station. The fact that there may have been an explanation for that inconsistency is not to the point, at least insofar as arguments concerning irrationality or illogicality are concerned. Indeed, the Authority ultimately gave little or no weight to this particular inconsistency precisely because there may have been an innocent or simple explanation for it: Reasons at [15]. It was obviously not an important, let alone critical, finding in the context of the Authority’s reasons as a whole.

58    Finally, there could be little doubt that it was open to the Authority to find that the appellant’s various explanations for why he was “targeted” by the Sri Lankan authorities in relation to the finding of the weapons in a nearby house were implausible or lacked credibility. The fact that the explanations may have involved a degree of conjecture, as the appellant now claims, is effectively beside the point. It certainly does not demonstrate that the findings made by the Authority concerning this element of the appellant’s evidence was illogical, irrational or not open on the material.

59    It follows that there is no merit in the appellant’s proposed ground 8. There is no basis to conclude that the Authority’s decision was in any way based on findings that were illogical, irrational or not open on the evidence.

Should leave to raise the two new grounds be granted?

60    This question is, in a sense, rather academic. That is because, if leave were to be granted, the appeal would in any event be dismissed because, for the reasons already given, neither of the two new grounds has any merit. The point, however, is that appellants and their lawyers should be given no encouragement to do what the appellant in this case did.

61    The appellant initially retained a lawyer in respect of his application in the Circuit Court. That lawyer reviewed the Authority’s decision and the review material and no doubt settled the grounds of challenge to the Authority’s decision. The appellant provided no explanation for why that lawyer did not appear for him at the hearing in the Circuit Court. It cannot simply be assumed that he was unable to pay the lawyer. In any event, the appellant retained new lawyers after his application in the Circuit Court was dismissed. Those lawyers jettisoned the previous grounds and came up with new grounds on which to challenge the Authority’s decision. If the appellant is permitted to raise what is, in reality, an entirely new case on appeal, that would fly in the face of the statutory regime for the review of migration decisions which specifically denies jurisdiction to this Court in first instance judicial review applications.

62    It may be accepted that the Minister was not prejudiced in any way by the appellant raising new grounds of challenge to the Authority’s decision. The new grounds all hinged on the Authority’s reasons and the material that was before the Circuit Court. There was no suggestion that the Minister could have adduced evidence in the Circuit Court if any of the new grounds had been agitated there. The Minister was also eventually able to make submissions in response to all of the new arguments. The lack of prejudice to the Minister does not, however, necessarily justify the grant of leave to raise new arguments, particularly in the absence of any reasonable explanation for why the arguments were not raised in the Circuit Court.

63    Despite the fairly powerful reasons for refusing leave, the preferable course in this case, in all circumstances, is to grant leave to the appellant to raise the two new appeal grounds. That is because the new arguments and the grounds of appeal based on them were all fully argued. As has already been noted, the result is the same whether leave is granted or not. For the reasons already given, neither of the grounds of appeal have been made out. The Authority did not make any of the jurisdictional errors alleged by the appellant. The appellant did not press any of his previous grounds of appeal.

CONCLUSION AND DISPOSITION

64    The appellant should be granted leave to file the amended notice of appeal and leave to rely on arguments concerning the lawfulness of the Authority’s decision that were not argued in the Circuit Court.

65    Neither of the grounds of appeal in the amended notice of appeal have any merit. There is no basis for finding that the Authority acted unreasonably in either failing to exercise its discretion to get new information concerning the appellant’s claims or evidence, or failing to consider exercising that discretion. Nor is there any basis for finding that the Authority’s decision was legally unreasonable because it was based on irrational or illogical findings concerning the appellant’s claims and evidence. The appellant did not press any other ground of appeal.

66    The appellant’s appeal must accordingly be dismissed with costs.

Associate:

Dated:    11 August 2021