Federal Court of Australia

EOD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 10

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be determined on a lump sum basis.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of Sri Lanka, arrived at the Cocos (Keeling) Islands in September 2012 as an irregular maritime arrival. The appellant applied for a Safe Haven Enterprise visa (a form of protection visa). His application was refused by a delegate of the first respondent (the Minister). The delegate’s decision was referred to the Immigration Assessment Authority (the IAA) for review. The IAA affirmed the delegate’s decision. The appellant applied to the Federal Circuit Court of Australia (as it was then named) for judicial review of the IAA’s decision. The Federal Circuit Court dismissed the application for judicial review. The appellant appeals to this Court from the judgment of the Federal Circuit Court.

2    For the reasons that follow, the appellant has not established any error in the judgment of the primary judge. It follows that the appeal is to be dismissed.

Procedural background

3    The procedural background is set out in the reasons of the primary judge, and may be summarised as follows:

(a)    On 8 September 2012, the appellant arrived at the Cocos (Keeling) Islands as an irregular maritime arrival.

(b)    On 13 October 2015, the appellant was invited by the Department of Immigration and Border Protection to apply for a Temporary Protection visa or a Safe Haven Enterprise visa.

(c)    On 13 July 2016, the appellant applied for a Safe Haven Enterprise visa. (The date appears from Appeal Book page 47.)

(d)    On 20 March 2017, a delegate of the Minister refused the appellant’s application for a Safe Haven Enterprise visa.

(e)    The delegate’s decision was referred to the IAA for review, pursuant to Pt 7AA of the Migration Act 1958 (Cth).

(f)    On 4 September 2017, the IAA decided to affirm the decision under review.

(g)    On 9 October 2017, the appellant applied to the Federal Circuit Court for judicial review of the IAA’s decision.

(h)    As the appellant’s application to the Federal Circuit Court was filed 8 minutes late, he needed to apply for, and did apply for, an extension of time. However, there was no appearance for the appellant on the return of this application and it was dismissed for want of appearance. Subsequently, an application for reinstatement was made. This application was successful: EOD17 v Minister for Immigration and Border Protection & Anor [2018] FCCA 3323. In the course of deciding that the application for reinstatement should be granted, the primary judge expressed the view that the appellant’s first and second proposed grounds of review were arguable: at [40], [48].

(i)    On 7 February 2019, the hearing of the appellant’s application for judicial review took place before the primary judge. The appellant was represented by counsel. At the hearing, counsel for the appellant abandoned the grounds set out in the appellant’s amended application and sought leave to rely on a proposed new ground, which was as follows:

The decision of the IAA is affected by legal unreasonableness.

Particulars

The IAA unreasonably failed to consider whether to request information from the applicant as to whether he could arrange for a family member to come to court and collect him as a condition of being released on bail for charges under the Immigrant and Emigrants Act.

(j)    On 12 December 2019, the primary judge published reasons for judgment: EOD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (No 2) [2019] FCCA 3493 (the Reasons). His Honour considered that the proposed ground of review was not sufficiently arguable to justify a grant of leave to amend: at [41]. However, his Honour went on to consider the ground in full, as if he had granted leave to amend, and concluded that the ground was not made out: at [73]. The primary judge made orders dismissing the application for leave to amend and dismissing the amended application.

The appeal to this Court

4    On 17 January 2020, the appellant filed a notice of appeal in this Court. At the time this document was filed, the appellant was not legally represented, and that remained the position at the time of the hearing.

5    Although the notice of appeal seeks an order for leave to appeal out of time, this is unnecessary as the notice of appeal was filed within time.

6    The notice of appeal contains a single ground, namely: “The Court erred by not finding that the decision of the Immigration Assessment Authority was tainted by legal unreasonableness”. Although no particulars are provided, it may be inferred that the appellant seeks to rely on the same contention as was advanced on his behalf at the hearing of his amended application in the Federal Circuit Court.

7    The hearing of the appeal was delayed due to the restrictions on ‘in person’ hearings due to the COVID-19 pandemic. The hearing ultimately took place (‘in person’ in Court) on 15 December 2021. The appellant appeared for himself, with the assistance of an interpreter.

8    The appellant did not file an outline of submissions in advance of the hearing. At the hearing, he made brief oral submissions. Understandably, given his lack of legal training, he was not able to articulate any particular alleged error in the judgment of the primary judge.

Consideration

9    The primary judge set out the background facts at [18]-[29] of the Reasons. I refer to that summary of the background facts.

10    At [30]-[37] of the Reasons, the primary judge summarised the IAA decision. I consider this to be an accurate summary of the IAA’s decision, a copy of which is included in the Appeal Book. Although the IAA’s decision must be read as a whole, the most relevant paragraphs for present purposes are [44]-[45], where the IAA considered the position of persons who depart Sri Lanka illegally and subsequently return to the country:

44.    If a returnee pleads guilty, they will be fined and released. If they plead not guilty, returnees are immediately granted bail by the magistrate on personal surety or may be required to have a family member act as guarantor, in which case the person may need to wait until a family member comes to court to collect them. There are rarely any conditions in relation to the bail and if [there] are, they are imposed on a discretionary basis; the person will only need to return to court when the case against them is being heard (or if required to give evidence as a witness in another case).

45.    On the basis of the above information, I find that on return the applicant will be subject to a series of routine checks then arrested and charged for the offence of illegal departure, and subject to a fine. I accept that he may spend up to 24 hours in custody at the airport and then may be detained for a number of days pending bail. I also accept that prison conditions in Sri Lanka are poor due to old infrastructure, overcrowding and a shortage of sanitary and other basic facilities.

(Footnotes omitted; emphasis added.)

11    Paragraph 44 contained three footnotes, each of which referred to: DFAT, “DFAT Country Information Report Sri Lanka”, 24 January 2017, at 5.22.

12    As set out in the Reasons at [60]-[63], the appellant contended below that the IAA’s decision was tainted by legal unreasonableness arising from, it was said, a failure to seek out from the appellant new information in relation to an issue that emerged for the first time in the course of its review. The ground of review related to the IAA’s reasoning that the appellant would not be exposed to significant harm, in light of its findings as to the nature of the treatment he would most likely receive as an illegal departee and, in particular, the finding that he would not face prolonged detention. Counsel for the appellant at first instance noted that the IAA had recognised that country information recorded the conditions in Sri Lankan prisons to be very poor. The appellant’s submission focussed upon the finding that the appellant would probably be granted bail which, in turn, might have required the provision of a guarantee by a family member: see the IAA’s decision at [44]. It was submitted that nothing in the information before the IAA indicated whether there was any family member available to the appellant who might be able and willing to proffer a guarantee or surety for his bail. It was further observed that the delegate had not made any finding on this issue. Counsel for the appellant relied on Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 and Minister for Immigration and Border Protection v SZQTS (2015) 148 ALD 507 (SZQTS).

13    The primary judge outlined the statutory framework of Pt 7AA of the Migration Act: see the Reasons, [45]-[56]. His Honour also set out the principles of legal unreasonableness: see the Reasons, [42]-[43].

14    The primary judge’s core reasoning in relation to the appellant’s proposed ground based on legal unreasonableness was set out at [65]-[73]. The primary judge considered that the appellant’s reliance on SZQTS was flawed, as it did not take sufficient account of the different statutory framework in which that decision arose (namely, Pt 7, rather than Pt 7AA, of the Migration Act). The primary judge also stated that SZQTS had to be understood in light of later authority, namely SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 (SZTAP) at [76]-[78] per Robertson and Kerr JJ.

15    The primary judge reasoned at [69]-[70]:

69.    As observed by counsel for the Minister, here the IAA’s reasoning at [44] was in many respects very similar to the reasoning adopted by the Tribunal in SZTAP, which the Full Court found to be without error. There was no aspect of the applicant’s background or claims which distinctly raised the prospect that he would encounter difficulty in securing surety for his bail. To the contrary, the material before the delegate included that the applicant’s wife, mother, father and children all lived in Sri Lanka. By way of context, the applicant’s application for a Safe Haven Enterprise Visa contained the statement “I’m in regular contact with my family in Sri Lanka. We talk on average once a week via mobile.” Further, the attachment to his visa application identified no fewer than nine family members. Although the delegate had raised the issue, the applicant made no submissions respecting the grant of bail following arrest. Both the delegate and IAA referred to, and were conscious of, his familial links.

70.    I also accept the submission that there was nothing before the IAA as to warrant a conclusion that it should have departed from the usual practice of conducting the review “on the papers”. Indeed, as was properly conceded, the country information upon which the IAA had examined the treatment of illegal departees and, in particular, the manner in which they would be investigated, charged, arrested, detained, fined and bailed was not “new information” but had been before the delegate. Considered in this way, it was neither accurate nor sufficient, in my view, to assert that the delegate had not addressed these issues. To the contrary, the delegate had addressed the matter, but had done so in circumstances where the applicant had not raised any submissions in relation to it. Had the applicant wished to contend that the issue had not been properly considered by the delegate and that this flaw should be revisited in the course of a fast track review, no submission of that or any kind was made.

(Footnote omitted.)

16    The primary judge also said that no evidentiary basis was shown for an assumption that the provision of surety would be conditioned upon a requirement for the payment of money: cf SZTAP at [80]. In those circumstances, no basis was shown for a conclusion that the IAA ought to have considered the exercise of its statutory power to obtain information from the appellant.

17    I do not consider there to be any error in the primary judge’s approach to the proposed ground of legal unreasonableness. Moreover, several cases in this Court support the conclusion that his Honour reached: see, in particular, DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [97]-[98], [100].

18    As indicated above, the appellant was unable to point to any error in the primary judge’s reasons.

19    For these reasons, the appeal is to be dismissed. At the hearing of the appeal, the parties were given the opportunity to make submissions on costs. Neither party pointed to any matter that suggests that costs should not follow the event. Accordingly, I will also order that the appellant pay the Minister’s costs of the appeal, to be determined on a lump sum basis.

Associate:

Dated:    19 January 2022