Federal Court of Australia

CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345

ORDERS

THE COURT ORDERS THAT:

1.    Subject to Order 2, leave be granted to the applicant to appeal from the orders made by the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) on 16 December 2019 in proceeding SYG 1311 of 2019.

2.    The grant of leave to appeal is limited to the following ground:

(a)    whether the Immigration Assessment Authority erred in concluding, in relation to the new document referred to at [16] of its decision and reasons dated 1 May 2019, that the requirements of s 473DD of the Migration Act 1958 (Cth) were not satisfied; and

(b)    if so, whether that error is material.

3.    The appeal be dismissed.

4.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The applicant seeks leave to appeal from orders made by the Federal Circuit Court of Australia (as it then was, now the Federal Circuit and Family Court of Australia) on 16 December 2019 dismissing his application for judicial review of a decision of the second respondent (Authority): CDJ19 v Minister for Immigration & Anor [2019] FCCA 3686. The Authority had affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV).

2    As the applicant’s application for judicial review was dismissed at a show cause hearing, the orders made by the Federal Circuit Court are interlocutory. Accordingly, the applicant requires leave to appeal from them: see r 44.12(2) of the Federal Circuit Court Rules 2001 (Cth) (now repealed) (FCC Rules) and s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

BACKGROUND

3    The applicant is a citizen of Sri Lanka. He came to Australia in September 2012.

4    On 23 February 2016 the applicant applied for a SHEV. He claimed to fear harm on the basis of being a Tamil from the north, his links with the Liberation Tigers of Tamil Eelam (LTTE) and because he departed Sri Lanka illegally.

5    On 24 November 2016 a delegate of the Minister refused to grant the applicant a SHEV.

6    The delegate’s decision was referred to the Authority for review pursuant to s 473CA of the Migration Act 1958 (Cth).

7    On 9 August 2017 the Authority affirmed the delegate’s decision. That decision was set aside on judicial review by the Federal Circuit Court.

8    On remittal, the Authority again affirmed the decision under review.

the authority’s decision

9    The Authority identified the materials before it, which included the review material referred to it by the Secretary under s 473CB of the Act and new information.

10    The Authority obtained updated country information from the Department of Foreign Affairs and Trade. It considered, but decided it could not take into account under s 473DD of the Act, various documents and information contained within submissions advanced by the applicant, including a submission dated 19 December 2016 and an email dated 7 April 2019 which attached a “certified copy” of a purported translation of a “Summons/Notice to an Accused Person” dated 19 January 2018 (Summons).

11    The Authority accepted the applicant was from the north of Sri Lanka where the LTTE had maintained a strong presence during the war, and that during an attack the applicant fled. However, it did not accept the applicant’s claims to have been sent to Colombo in 1987 by the LTTE for surveillance purposes nor critical claims in relation to the applicant’s time in Batticaloa, in particular his claim to have dug up a rifle in 2005/2006. The Authority found there to be inconsistencies in the applicant’s account of past harm he claimed to have suffered at the hands of the LTTE. The Authority did not accept that the Sri Lankan Criminal Investigation Department pursued the applicant after the war ended in 2009.

12    The Authority was not otherwise satisfied that the applicant had a relevant risk of harm in connection with his ethnicity or because he departed Sri Lanka illegally. It concluded that the applicant did not meet the requirements for the grant of a SHEV under s 36(2)(a) or s 36(2)(aa) of the Act.

FEDERAL CICUIRT COURT PROCEEDING

13    The applicant advanced two grounds of review in the Federal Circuit Court. First, he contended that the Authority’s conclusion that he did not face harm from his past LTTE association was reached through an illogical reasoning process, or was otherwise not open on the evidence, or alternatively, there was no logical connection between the evidence and the inference or conclusion drawn by the Authority. Secondly, he contended that the Authority erred in applying s 473DD of the Act by reference to a photograph of the applicant wearing an LTTE uniform.

14    In relation to the first ground, the primary judge considered that the Authority had engaged in a rational consideration of the applicant’s claims and evidence. His Honour summarised the sources of information the Authority took into account in support of its conclusions: CDJ19 at [28]-[32].

15    In relation to the second ground, the primary judge found no error in the Authority’s assessment of the existence of exceptional circumstances in respect of the photograph. His Honour noted the Authority’s identification of factors such as the low quality of the photograph, the lack of contextual information, the difficulty in establishing the age of the person in the photograph and the inherent inconsistency between the applicant’s claimed surveillance role and the need to wear distinctive camouflage.

16    The primary judge therefore dismissed the application pursuant to r 44.12(1)(a) of the FCC Rules, with costs.

the application for leave to appeal

17    On 8 January 2020 the applicant filed his application for leave to appeal together with his affidavit in support sworn on 8 January 2020.

18    The applicant has not provided a draft notice of appeal but raises two proposed grounds in his application for leave to appeal, being (as written):

1.    The Federal Circuit Court failed to find that the Authorities decision was vitiated by jurisdictional error in that failed to consider an integer of the Applicants protection claims, leading to a failure to exercise jurisdiction.

2.    Particulars: Applicant was ex Tiger Soldier, he was with them more then a decade. Most of this soldiers when they returned arrested at the Airport and taken to custody and tortured.

3.    Ground Two; The Federal Circuit Court failed to find that the Authority failed to excercise its powers pursuant to s473CC with in the bounds of reasonableness in that it made findings that were not supported by evidence, leading to a decision that was plainly unjust and lacking an evident and intelligent justification.

4.    Particulars; This ex soldiers unable to re - establish and leaving they live in the Authority hands.

19    The applicant, who was not legally represented in this Court or before the primary judge, provided no written submissions in support of his application and, when invited to do so, made limited oral submissions which went only to the merits of the delegate’s and the Authority’s decisions. That is he raised a number of matters about his life in Sri Lanka and the harm he said he might face if he returned. The applicant made no submissions which went directly to the grounds raised by him in his application for leave to appeal.

Legal principles

20    The principles to be applied in determining whether leave to appeal should be granted are well settled.

21    The factors to be considered in determining the question of leave to appeal are whether there is sufficient doubt as to the correctness of the judgment below to warrant reconsideration and, if the judgment below is assumed to be wrong, substantial injustice would flow if leave were refused: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

22    In SZTRG v Minister for Immigration and Border Protection [2014] FCA 836 at [19] after referring to the factors identified in Decor Corporation, Beach J also expressed the test “slightly differently” observing that “leave to appeal will be granted where there is a reasonably arguable case that the decision of the court below is affected by an appealable error and a grant of leave is necessary to remedy a substantial injustice”.

Consideration

23    As a preliminary matter I note that the Minister accepted that substantial injustice would flow to the applicant if the judgment of the primary judge was assumed to be wrong and leave was refused. As the Minister submitted, in those circumstances, the applicant would be deprived of a further opportunity to pursue merits review of the delegate’s decision before the Authority.

24    Thus at issue is whether there is sufficient doubt as to the correctness of the judgment below to warrant its reconsideration or whether there is a reasonably arguable case that the primary judge’s decision is affected by an appealable error.

25    I turn then to consider whether that is so first, by reference to the grounds raised by the applicant and then by reference to an additional matter raised by the Minister.

26    By his first ground the applicant contends that the primary judge failed to find that the Authority failed to consider an integer of his claims, namely that he was an ex-LTTE solider and that, upon their return, most LTTE soldiers are arrested at the airport, taken into custody and tortured.

27    This proposed ground was not raised before the primary judge. Thus the applicant would require leave to raise it for the first time on appeal. In summary, leave to argue a new ground on appeal not raised before the primary judge will only be granted where it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48]. The Court may grant leave if a 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. An explanation for the failure to raise the ground below will also usually be required: see SZLPH v Minister for Immigration and Border Protection (2018) 266 FCR 105 at [28]. In this case, the proposed ground is without merit.

28    The applicant’s claim that as an ex-LTTE soldier he would be arrested, taken into custody and tortured on his return was clearly made on the materials before the Authority. For example in his statement submitted with his application for a SHEV, the applicant said, among other things, that if he was to return to Sri Lanka there was “possible detention and interrogation on [his] arrival or later” and that he would “be closely interrogated regarding [his] illegal departure when the Sri Lanka security forces [were] likely to find that [he] was with the LTTE”. But, that claim was addressed by the Authority. Relevantly, at [56] of its decision record the Authority noted that it had considered the applicant’s assertion that he “will be closely scrutinised by the security forces at the airport on return as a failed Tamil asylum seeker originally from the north and that it is likely that they will discover from his home town/local Sri Lankan authorities/pro-government Tamil militant group that he was a long term member of the LTTE and therefore he is likely to be arrested, detained and harmed as a former member of the LTTE”. The Authority reasoned that this did not give rise to a relevant risk of harm given the applicant’s lack of profile at the time of his departure from Sri Lanka and country information that reported a decrease in systematic surveillance of returnees and a general improvement in the security situation.

29    By the second proposed ground the applicant contends that the primary judge failed to find that the Authority failed to exercise its powers pursuant to s 473CC of the Act reasonably because it made findings that were not supported by evidence. This ground appears to relate to ground 1 before the primary judge by which, as set out at [26] above, the applicant contended that the Authority’s conclusion that he did not face harm from his past LTTE association was reached through an illogical reasoning process, was not open on the evidence, or alternatively there was no logical connection between the evidence and the inferences drawn by the Authority.

30    The applicant has not identified any particular error in the primary judge’s reasoning and I am unable to discern one. At [29]-[31] of CDJ19 the primary judge referred to the evidence and material before the Authority to which it had regard in considering the applicant’s claims. At [32] the primary judge concluded that:

It is apparent that the Authority took into account various sources of country profile information, and applied this information to the applicant’s claims. I accept that the Authority engaged in a reasonable engagement with the claims and the material available, and came to the rational, intelligible conclusion, based on the evidence, that the applicant did not meet the requirements of the definition of refugee under the s.5H(1) of the Migration Act, and was not of sufficient interest as to face a real chance of harm in accordance with s.36(2)(a).

31    For completeness I note that, upon review, there is no apparent illogicality in the Authority’s reasons. The Authority explained why it reached its conclusions about the applicant’s claims. In particular, while it accepted some of his claims, it rejected others. That is, it accepted that the applicant had at some time been a member of the LTTE but nevertheless was not satisfied that he would face the type of harm he identified upon his return. There is nothing illogical about that approach and the reasoning process undertaken by the Authority.

32    Based on his proposed grounds of appeal the applicant has not established that there is sufficient doubt about the correctness of the primary judge’s reasons or a reasonably arguable case that the primary judge’s decision is affected by an appealable error. On that basis alone I would not grant leave to appeal. However, there is a further matter to be considered.

33    In his submissions the Minister, quite properly and in accordance with his obligations as a model litigant, identified an error in the Authority’s reasons by reference to its consideration of one aspect of the new information proffered by the applicant to it, being the Summons referred to at [10] above which was provided to the Authority under the cover of an email dated 7 April 2019. This was not raised below and thus considered by the primary judge. Regrettably, again as identified by the Minister, several documents which had been before the Authority were omitted from the court book relied on before the primary judge. One of those documents was the email dated 7 April 2019 and the enclosed Summons.

34    Section 473DD of the Act mandates when the Authority can consider new information. It provides:

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

35    In ABH18 v Minister for Home Affairs [2020] FCA 620 at [24] Charlesworth J observed the following about the operation of s 473DD:

It is well established that the conditions in s 473DD(a) and (b) are cumulative: both must be satisfied before the Authority can consider the new information: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [31] (Gageler, Keane and Nettle JJ). It is just as well established that the two conditions in s 473DD(b)(i) and (ii) are alternatives: Plaintiff M174/2016 at [31].

36    The Authority considered whether it should have regard to the Summons at [16]-[18] of its decision record. At [16] it referred to receipt of the email and the enclosed Summons and described the Summons, noting that it was new information. At [17]-[18] the Authority said:

17.    Purportedly the document indicates that in 2018 the Sri Lankan authorities summonsed the applicant to appear in court in relation to an incident which occurred more than ten years earlier. The summons asks the applicant to report to the court on a given date, but from the applicant’s evidence at the SHEV interview the authorities are aware he is overseas; he stated that when they visited his wife after his departure they asked when he was returning to Sri Lanka. I am also concerned that this claimed interest has arisen only after the negative decisions made by the delegate and the IAA. There is no indication in the applicant’s claims of any interest in him because of this incident during that ten year period. I am not satisfied that it is only coincidence that this summons was issued after these negative decisions.

18.    Furthermore it is not apparent how this incident relates to the applicant’s claims. There is no indication in his claims that the applicant was involved in such an incident, or was suspected of being so involved, and the applicant has not provided any information to the IAA to explain the relevance or context of this document. In the absence of any apparent link between the document and any of the protection claims or the applicant’s circumstances I am not satisfied that the document is a translation of a genuinely issued Sri Lankan court summons. The applicant has failed to satisfy me that this document contains credible personal information, and I have not considered it.

37    As is evident the Authority accepted that the Summons post-dated the delegate’s decision and thus could not have been given to the Minister. It follows from that finding that the Authority was satisfied that the requirements of s 473DD(b)(i) of the Act were met. The Authority went on to express its view that it was not satisfied that the requirements of s 473DD(b)(ii) were met in relation to the Summons in that it was not satisfied that the document contained credible personal information. The Authority then needed to consider whether there were exceptional circumstances to justify consideration of the Summons as required by s 473DD(a) of the Act. However, it is clear that it failed to do so and therefore it failed to comply with s 473DD of the Act in considering the Summons.

38    As the Minister submitted, whether this error amounts to jurisdictional error depends upon whether it was material. In EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657 at [38] Wheelahan J relevantly stated:

The application of the principles in SZMTA demonstrates that the question of materiality is to be considered in relation to the actual decision under review, and not against the prospect that another decision-maker might take a different course. That is because the primary question before the Court in considering materiality is whether the decision in issue was made outside the scope of the statutory authority to decide, and not whether the granting of relief would be futile: cf, Hossain at [13]-[14] (Kiefel CJ, Gageler and Keane JJ) and at [78] (Edelman J), and Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145 (Mason, Wilson, Brennan, Deane and Dawson JJ).

39    The Minister submitted that in this case the Authority’s failure to comply with s 473DD of the Act in relation to the Summons was not material. That is because had the Authority complied with the requirements of s 473DD of the Act and assuming, in the applicant’s favour, found exceptional circumstances to justify consideration of the Summons, its consideration of that document (at [18] of its decision record) makes it clear that it could not have reached a different result on the review. I accept that submission. Relevantly, the Authority found that the Summons was not a genuine document and that it was not apparent how it related to the applicant’s claims. While the Authority purported to give substantive consideration to the Summons, notwithstanding its more limited task under s 473DD of the Act, it expressed its serious concerns about that document and, in effect, rejected it as genuine.

40    A similar conclusion was reached in ABH18. In that case there had also been a failure by the Authority to comply with s 473DD of the Act in relation to new information. However, Charlesworth J found that, in the context of its consideration of the information for the purposes of s 473DD of the Act, the Authority had given substantive consideration to whether the new information could be believed and had reached a substantive conclusion that it could not. In those circumstances her Honour was not satisfied that the Authority’s error could materially affect the ultimate outcome of its review. At [45] her Honour relevantly said:

… If the new information satisfied the requirements of s 473DD of the Act, the appellant was entitled to have that material assessed against the whole of the material before the Authority. The obligation to consider the information would have included an obligation to make a finding as to whether or not the claimed recent events had in fact occurred in light of all of the circumstances of the appellant’s case. That is substantially what the Authority did, albeit purportedly under the procedural framework of s 473DD. In the unusual circumstances of the appellant’s case, the Authority did give substantive consideration to the information of the kind it would have been obliged to give, had it not determined that it was precluded by s 473DD from doing so.

41    Her Honour thus concluded that to the extent that the Authority’s approach was erroneous, the errors were not material and hence not jurisdictional. The same conclusion follows in this case given the Authority’s findings about the Summons set out at [39] above.

42    In light of the error which has been identified in the Authority’s reasons, leave to appeal should be granted but limited to the question of whether the Authority erred in concluding in relation to the Summons that the requirements of s 473DD were not satisfied and, if so, whether the error is material. While that ground was not raised before the primary judge, in the circumstances of this case, it is expedient in the interests of justice to grant leave to raise it for the first time on appeal.

43    The Minster submitted that if the Court was minded to grant leave to appeal, the appeal should be dismissed with costs. Given the way in which this issue came to light, the notice given to the applicant of the issue by way of the Minister’s submissions, which the applicant acknowledged at the commencement of the hearing he had read upon receipt, and that I have accepted that in the circumstances of this case the error was not material such that it could not be regarded as jurisdictional, that is how I will proceed. As the outcome is clear, it is in the interests of the parties and in accordance with s 37M of the Federal Court of Australia Act 1976 (Cth) that I do so.

conclusion

44    I will grant leave to appeal limited to the question of whether the Authority erred in concluding in relation to the Summons that the requirements of s 473DD were not satisfied and, if so, whether the error is material, but would dismiss the appeal on that ground.

45    As the applicant has been unsuccessful he should pay the Minister’s costs as agreed or taxed.

46    I will make orders accordingly.

Associate:

Dated:    7 April 2022