Federal Court of Australia

EWF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1216

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The appellant is to pay the first respondent’s costs, to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The appellant seeks an order to reinstate his appeal, which I dismissed on 20 November 2019 following the appellant’s failure to appear at the hearing.

2    The Court has power set aside or vary such an order pursuant to s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth), and see r 36.75(2) of the Federal Court Rules 2011 (Cth). The power is discretionary and whether the Court should exercise its discretion in this context ordinarily requires consideration to be given to three factors: first, whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out; second, the existence and nature of any prejudice which might flow to the other party from the reinstatement; and third, whether the applicant has a reasonably arguable prospect of success on the substantive application: for example see, BLJ16 v Minister for Immigration and Border Protection [2018] FCA 525 at [2]; FJA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 38 at [6]; MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7].

3    For the reasons below, the application is dismissed.

Background

4    The appellant is a citizen of Sri Lanka who arrived in Australia on 21 October 2012. On 21 November 2016 he made an application for a Safe Haven Enterprise Visa (SHEV), claiming he feared harm on the basis of his ethnicity, imputed links with the Liberation Tigers of Tamil Eelam (LTTE), that he formerly resided in the Eastern Province, his illegal departure from Sri Lanka and for seeking asylum in Australia. The appellant referred to encounters with the Sri Lankan Army and the Karuna Group during the war, and with the Criminal Investigation Department following the war.

5    On 10 March 2017, a delegate of the Minister refused to grant the appellant a SHEV. On 16 October 2017 the Immigration Assessment Authority (the Authority) affirmed that decision, and on 28 June 2019 the Federal Circuit Court dismissed the appellant’s application for review of that decision: EWF17 v Minister for Immigration & Anor [2019] FCCA 1511.

6    The appeal had initially been listed for hearing on 18 November 2019 but the appellant failed to appear. Prior to 18 November 2019 the appellant had corresponded with the Court seeking an adjournment of two days because he was likely to have legal representation, but that they were not available on the listed hearing date. Accordingly the appeal was relisted for hearing on 20 November 2019, but neither the appellant nor any legal representative on his behalf appeared on that day. The proceedings were dismissed: EWF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1968.

7    The explanation for the appellant’s failure to attend is contained in his affidavit dated 16 December 2019. In that affidavit the appellant deposes that two weeks prior to the hearing RACS agreed to attend Court on his behalf. He further deposes that when he contacted RACS on 20 November 2019, he was told that they could not attend Court on 18 November 2019 to represent him.

8    The appellant advances an amended notice of appeal which alleges the same grounds he advanced before the Federal Circuit Court. An additional ground directed to the Federal Circuit Court decision is also now advanced.

9    I note also that at the hearing on 28 September 2021, the appellant sought to read an affidavit of the appellant dated 31 August 2021. The appellant could not identify the basis on which the affidavit was relied on, or its relevance to the hearing. The appellant submitted it was evidence of why he had fears about returning to Sri Lanka. The respondent opposed the affidavit submitting it was irrelevant. I rejected the evidence.

10    As I observed in BRT19 v Minister for Home Affairs [2020] FCA 449 at [26] “given the limited nature of the hearing before the Federal Circuit Court, fresh evidence cannot be adduced on review to contradict evidence before the Tribunal; demonstrate an error of fact by the Tribunal; nor invite this Court to make findings of fact, turning the application in this Court to a merits review”. The only basis that the appellant could ask this Court to admit such evidence is in an attempt to show an error in the findings made by the Tribunal. That would be to convert this into an impermissible merits review. 

Consideration

11    Although the material provided is scant, there is some explanation provided by the appellant for his failure to attend when the matter was listed for hearing. I simply observe there is no material as to why, in the circumstances where the appellant had not appeared on 18 November 2019 and was advised after that hearing that the matter has been relisted for 20 November 2019 as per his request, he still did not appear on 20 November 2019. That said, the failure to provide any further material is of no moment to the outcome.

12    As to prejudice as a result of any restatement, although the respondent relied on the principle of finality and the consequential effect thereof, the respondent acknowledged that no prejudice arises particular to this matter.

13    It follows, the real issue in this application is whether the appellant has a reasonably arguable prospect of success on the substantive application.

14    The grounds fall into two categories, those directed to s 473DD and those directed at s 473DC of the Migration Act 1958 (Cth) (the Act).

Grounds 1-3: s 473DD

15    The first three grounds, which significantly overlap, variously challenge the Authority’s determination under s 473DD of the Act that it could not take into account the “Arms Information”.

16    The appellant complains, primarily referring to [25] and [30] of the reasoning of the primary judge, that his Honour erred in failing to conclude that the Authority had committed jurisdictional error in its application of s 473DD. The appellant alleged, inter alia, his Honour erred in failing to find that the Authority took an unduly narrow approach when considering the new information; focussed on the opportunities the appellant had to make the claims earlier; failed to consider the nature of the new information; and failed to consider exercising its discretion under s 437DC.

17    The appellant’s grounds are not reasonably arguable.

18    The relevant passage of the primary judge’s reasons, which recited the impugned passage from the Authority are at [25]-[31].

[25]     I am not persuaded by these submissions. This was not a case of the applicant raising a new claim which was material in that it could have transformed the review. Rather, it was a case of the applicant attempting to develop a minor and incidental set of asserted facts touched upon in his initial invalid protection visa application which was only raised almost in passing again at the interview with the delegate. The applicant did not adequately explain why the additional details now brought forward could not have been raised before the delegate. The applicant stated that he was not asked for the additional details but he made no complaint of procedural unfairness before the delegate. The sound recording of the delegate’s interview was before the Authority and the inference is open that the Authority had listened to that sound recording.

[26]    The Authority purported to deal with all three elements of s.473DD at [9] of its reasons where it stated:

In the IAA submission, the applicant states that he previously transported ‘arms and equipment’ to the Liberation Tigers of Tamil Eelam (LTTE). He also submits that the Sri Lankan security officers are aware of this and it was ‘the main reason’ that the authorities came in search of him. These new claims [which] were not before the delegate relate to events that pre-date the delegate’s decision. The IAA submission does not explain why this information could not have been provided to the delegate or why it may be considered credible personal information. In the interview with the delegate of 1 March 2017 (SHEV interview), the applicant indicated that he occasionally transported ‘goods’ (unspecified) for the LTTE if requested to do so. He also stated that on one occasion in April 2004 he was falsely accused of transporting goods to the LTTE. At no time did the applicant claim that he transported or provided arms to the LTTE, or that the Sri Lankan authorities were aware that he transported or provided arms (or any goods) to the LTTE, including in his SHEV application, at the SHEV interview, or in the post-SHEV interview submission of 7 March 2017. Further, at no time did the applicant indicate that it was for this reason that he had come to the adverse attention of the Sri Lankan authorities. In the circumstances, I am not satisfied that these new claims represent credible personal information or could not have been provided before the delegate’s decision was made. Neither am I satisfied that there are exceptional circumstances to warrant consideration of these claims.

[27]    In my view, the Authority in that paragraph did not limit itself to the temporal consideration of the failure to expand upon the claims before the delegate, but also took into account that the new information was an expansion or elaboration of claims already put which was unexplained, save to assert that the applicant had not been asked for the additional details. That went both to the assessment of whether the information was credible personal information and also whether there were exceptional circumstances.

[28]    I otherwise agree with the Minister’s submissions in relation to these grounds.

[29]    The first three grounds concern what is said to be a failure by the Authority to exercise its jurisdiction by reference to its application of s.473DD to information referred to at [9] of the Authority’s decision record. The applicant submits that the Authority made an error at [9] of the same kind as that identified by the Federal Court in BVZ16. He contends that the Authority determined that the applicant’s information about his having transported arms and equipment for the LTTE was not to be considered pursuant to s.473DD based only on the fact that the information related to events before the delegate’s decision that was not brought forward earlier and for which no explanation had been given.

[30]    The applicant’s argument cannot be accepted. First, the Authority did not confine its consideration as to the existence of exceptional circumstances only to the fact that the events described in the new claims occurred prior to the delegate’s decision with no explanation as to why the claims could not have been advanced earlier. The Authority engaged in an analysis of the applicant’s earlier claims and noted that his earlier claim had been simply that he had transported goods for the LTTE. The Authority observed that the claim relating to transporting arms had not been made in his SHEV application, in the delegate’s interview, or in post-interview submissions. What was plainly significant in the Authority’s view was not just the fact that the new claims had not earlier been raised, but that the applicant had made claims concerning the transporting of “goods” for the LTTE without having mentioned that those goods might have been arms and equipment. It is apparent that the Authority’s concerns regarding the escalation of this claim contributed to its finding under s.473DD(b) that the information was not credible personal information.

[31]    Further, the applicant does not identify what was exceptional about the applicant’s circumstances which the Authority failed to identify, notwithstanding the applicant’s failure to identify any such circumstances.

19    It is also appropriate to consider the context which the statements in [25] were made; that the appellant was attempting to develop a minor and incidental set of asserted facts. The appellant’s submission that the description is inaccurate, cannot be accepted. It is apparent from the delegate’s reasons, having recited the appellant’s evidence of his involvement with the LTTE, the delegate records at the end of the summary that “[o]ccasionally they were asked to transport some goods for the LTTE”. It is in that context in which the statement at [25] was made. The description by the primary judge is apt.

20    The appellant’s submissions as to the Authority’s approach are not borne out by a proper reading of the reasons.

21    As the respondent correctly submitted, consistent with the proper approach to s 473DD, the Authority in its reasons at [9] (recited above at [18]) had regard to both of the considerations in s 473DD (a) and (b): Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; AUS17 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 94 ALJR 897 (AUS17). In AUS17 the Court observed at [11]:

Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a).

22    A consideration of [9] reflects that approach was undertaken.

23    Contrary to the appellant’s submission, the Authority did not limit itself to the “temporal consideration” of whether the information could have been provided earlier. So much is readily apparent from the outset of [9] where, after referring to the new claims it states:

“[t]hese new claims [which] were not before the delegate relate to events that pre-date the delegate’s decision. The IAA submission does not explain why this information could not have been provided to the delegate or why it may be considered credible personal information”. Having considered the matter the Authority concluded that “I am not satisfied that these new claims represent credible personal information or could not have been provided before the delegate’s decision was made”.

24    It is plain from [9] that the Authority did not limit itself to the question of whether the appellant could have provided the information earlier, but was concerned that the appellant was attempting to bolster his earlier claim to have provided goods to the LTTE, by now asserting post the delegate’s refusal decision, that he had provided arms, which is a more serious claim. As the primary judge observed at [27] the Authority “also took into account that the new information was an expansion or elaboration of claims already put which was unexplained, save to assert that the applicant had not been asked for the additional details”. Further, at [30], the primary judge observed “It is apparent that the Authority’s concerns regarding the escalation of this claim contributed to its finding under s 473DD(b) that the information was not credible personal information”.

25    The primary judge’s description of the process undertaken by the Authority is accurate. It was not really suggested otherwise, with the appellant’s attention focussed on [9] of the Authority’s reasons. There is no reasonable argument to be had in relation to the application of s 473DD.

Ground 4: s 473DC

26    The appellant alleges that the primary judge erred in not finding that the Authority acted unreasonably under s 473DC by failing to consider whether it should obtain further information from the appellant relating to the new information in circumstances where the appellant had not been afforded with an opportunity to provide such further information. He submitted that the Authority was aware that the information before the delegate was a summary of claims for protection, which did not contain the claim concerning the goods, and therefore ought to have been aware that potentially relevant information may be missing. The Authority ought to have considered whether to obtain that further information from the appellant in respect of potentially significant claims, and thereby acted unreasonably.

27    It was also submitted that the primary judge erred when it stated: “In short, the applicant having failed to establish fault in the consideration of exceptional circumstances under s 473DD, s 473DC has no work to do. Even if I were wrong in that view, however, and there was a live issue of unreasonableness to consider, in my view it has not been established”: at [38]. It was submitted that the exercise of s 473DC does not depend upon whether there are exceptional circumstances and accordingly the primary judge misunderstood the legislation and so committed jurisdictional error.

28    The respondent submitted that it was not for the Authority to make out the appellant’s case for him. Nor was it for the Authority to invite the appellant to a further interview to allow him another opportunity to explain why his new claims that he transported arms for the LTTE should be taken into account as new information. It was in this context that the primary judge referred to the appellant having failed to establish fault in the consideration of exceptional circumstances under s 473DD, meaning that s 473DC had no work to do. There was no error in the primary judge’s reasoning, who concluded in any event that the appellant had not established the Authority acted unreasonably.

29    That submission must be accepted. Regardless of what was meant by the passage at the commencement of [38], the appellant has not addressed the conclusion that he has not established the Authority acted unreasonably.

30    The Authority concluded at [39]-[42] (references omitted):

[39]     I have accepted that during the conflict many Tamils in the north and east of Sri Lanka were harassed and detained by the Sri Lankan security forces. The US Department of State reported that in 2015 security forces and paramilitary groups frequently harassed young and middleaged Tamil men, especially in the north and east of Sri Lanka. However, the harassment of Tamils was primarily limited to persons who were civil society activists, journalists, or those perceived to sympathise with the LTTE. In 2017, DFAT assessed that while a sizeable military presence remained in the north, armed forces personnel are generally restricted to their barracks. DFAT also assessed that the harassment of Tamils had decreased significantly under the Sirisena government, noting that members of the Tamil community have described a positive shift in the nature of their interactions with the authorities, and feel able to question the motives of, or object to, monitoring or observation activities.

[40]     In 2016, the UK Home Office reported that being of Tamil ethnicity does not in itself warrant international protection. In 2012, the United Nations High Commissioner for Refugees (UNHCR) determined that there was no longer a presumption of a requirement for protection for reason of being a Tamil from a former LTTE controlled area, and more recent reports do not mention that Tamils are at risk of harm based on their prior place of residence. I have also considered the country information from DFAT and other sources which indicate that Tamils are not being systematically targeted and subjected to serious harm because of their race. For example, the UK Home Office states: “Simply being a Tamil does not of itself give rise to a well-founded fear of persecution or serious harm in Sri Lanka. The onus will be on the person to demonstrate that they will face on return ill-treatment from the current, as opposed to the previous, government.

[41]     Country information in the referred materials indicates 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. Given my findings about the profile of the applicant, and having regard to the country information before me, I conclude that he is not a person that faces a real chance of serious harm by virtue of his Tamil ethnicity, or on account of any actual or imputed LTTE connections, including familial connections.

[42]     Accordingly, I am not satisfied that the applicant faces a real chance of serious harm due to his Tamil ethnicity, his religion, his actual or imputed LTTE profile, his former place of residence, or for any other reason, upon his return to Sri Lanka, now or in the foreseeable future.

31    The appellant’s submission does not address or challenge that conclusion. Rather the appellant merely asserts that the Authority “ought to have considered whether to get further information from the appellant in respect of potentially significant claims, and thereby acted unreasonably”.

32    The appellant has not established that this ground is reasonably arguable.

Conclusion

33    As the grounds in the amended notice of appeal are not reasonably arguable, there is no proper basis to reinstate the appeal. The application is dismissed with costs.

Associate:

Dated:    7 October 2021