FEDERAL COURT OF AUSTRALIA

BSF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1308

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to raise ground 1 of the amended notice of appeal is granted.

2.    The appeal is dismissed.

3.    The appellant is to 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

PERRY J:

1.    INTRODUCTION    

1    This is an appeal from a decision of the then Federal Circuit Court of Australia (FCC) dismissing the appellant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the IAA), made on 28 March 2017. By its decision, the IAA affirmed a decision made on 28 September 2016 by a delegate of the first respondent, then known as the Minister for Immigration and Border Protection, refusing to grant the appellant a Safe Haven Enterprise (subclass 790) Visa (SHEV) (the IAA decision).

2    The amended notice of appeal, filed with leave after the appellant had obtained legal representation, raises one ground of appeal. That ground challenges, on the basis that it was legally unreasonable, the finding at [20] of the IAA’s reasons (IAAR) that the IAA was not satisfied that the appellant’s fear of harm from paramilitary groups was well founded. Specifically, the appellant contends that that finding was based on a misreading of a report of the Australian Government, Department of Foreign Affairs and Trade (DFAT), being the DFAT Country Information Report: Sri Lanka dated 18 December 2015 (the 2015 DFAT report).

3    The appellant accepts that this ground was not raised before the primary judge and that leave, which is opposed by the Minister, is required to rely upon that ground.

4    For the reasons set out below, leave should be granted to raise the new ground of appeal but ultimately the appeal should be dismissed with costs.

2.    APPLICATION FOR LEAVE TO RAISE NEW GROUND OF APPEAL

5    Ground 1 of the amended notice of appeal refers to [18] and [20] of the IAAR and alleges that the IAA fell into jurisdictional error:

when the IAA took into account ‘information before the delegate that Tamil paramilitary groups have renounced paramilitary activities and that the power of the Karuna and Pillayan groups specifically has diminished.’ when this information was significantly qualified and when the IAA misrepresented the material before the delegate, such that the IAA did not take into account the significant qualification which was relevant, and [w]hen the IAA found ‘I am not satisfied that the applicant’s fear of harm from paramilitary groups is well founded.’

6    In support of the application for leave to raise this ground on the appeal, the appellant’s counsel relied upon the following factors:

(1)    the appellant had no legal representation in the FCC;

(2)    the new ground of appeal relies only upon the material before the IAA and does not require the tender of any new evidence which had not been led before the primary judge, aside from the 2015 DFAT report (exhibit A1) which was before the delegate and is referred to in the IAA’s reasons;

(3)    the Minister has not pointed to any prejudice which he would suffer if leave were granted; and

(4)    the ground has been elucidated in the appellant’s written submissions.

7    Furthermore, the Minister did not oppose the tender of the 2015 DFAT report on the basis that the report was before the IAA. I also note in this regard that material which is considered to be relevant to the review must be provided to the IAA in accordance with s 473CB(1)(c) of the Migration Act 1958 (Cth) (Migration Act).

8    The Minister, however, rightly pointed to decisions of this Court warning against the transformation of appeals into de facto trials on new grounds because:

(a)    that approach subverts the evident purpose of s 476A of the [Migration Act], which is to preclude this Court from having original jurisdiction to review the IAA’s decision; and

(b)     it denies the Minister any practical right of appeal, given that any subsequent appeal faces the hurdle of obtaining special leave from the High Court.

(First respondent’s submissions (RS) at [6].)

(See, eg, the discussion in Han v Minister for Home Affairs [2019] FCA 331 at [8]-[20] (Bromwich J) and the authorities referred to therein.)

9    At the hearing, the Minister also correctly submitted that the fact that the appellant was unrepresented at first instance is not of itself sufficient to allow a new ground to be raised on appeal, referring to SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [20] (Lander J). The Minister further invited the Court to infer that, while the appellant was ultimately not represented at the hearing in the FCC, his originating application for judicial review was prepared with legal assistance. However, no proper foundation has been established for the drawing of such an inference. The evidence rose no higher than speculation.

10    Notwithstanding the caution which must be exercised before permitting an appellant to raise a new ground for the first time on appeal, on balance I consider that the interests of justice weigh in favour of the grant of leave in this case. In addition to the considerations identified by the appellant’s counsel, the issue sought to be raised is a discrete one and is indeed the only ground of appeal on which the appellant now seeks to rely. I have also taken into account the seriousness of the consequences for the appellant flowing from an adverse decision on the appeal.

3.    BACKGROUND

11    The relevant background was non-contentious and may be summarised as follows.

3.1    The appellant’s claims to fear harm

12    The appellant is a Tamil from Sri Lanka who grew up in an area controlled by the Liberation Tigers of Tamil Eelam (LTTE). His brother was conscripted by the LTTE in 2002 and escaped on a number of occasions. The appellant claimed to fear harm:

(1)    as a Tamil from a former LTTE-controlled area in Sri Lanka;

(2)    from paramilitary groups who harassed his brother in 2012 and threatened the appellant because of his brother's prior involvement with, and defection from, the LTTE (the paramilitary claim); and

(3)    as a failed asylum seeker who departed Sri Lanka illegally.

13    Only the paramilitary claim is relevant to the present appeal. There is no challenge to the findings by the IAA that it was not satisfied that there was a real chance that the appellant would face any harm as a Tamil or by reason of the fact that he was from an area formerly controlled by the LTTE (IAAR at [21]). Nor is there any challenge to the IAA’s finding that the consequences which may flow from the appellant having left Sri Lanka illegally and returning as a failed asylum seeker would not amount to serious harm (IAAR at [31]).

3.2    The decision of the IAA

14    The IAA received submissions from the appellant on 15 October 2016 and expressly took those submissions into account in making its decision.

15    The IAA accepted significant aspects of the appellant’s claims, including (relevantly) that:

(1)    the appellant’s brother was forcibly recruited by the LTTE in 2002, made attempts to leave or escape the LTTE, and was imprisoned by them (IAAR at [11]);

(2)    the appellant's family was threatened by the LTTE, his father was detained by the LTTE for two days, and the appellant’s brother went into hiding until the LTTE vacated the local area (IAAR at [11]);

(3)    it was plausible that, in 2005 or 2006, the appellant’s brother was assisted by an International Organization for Migration (IOM) program to re-establish himself and as a result was not charged for his prior LTTE involvement (IAAR at [12]); and

(4)    it was plausible that a paramilitary group had harassed the appellant's brother and the appellant in 2012 (at [13]).

16    With respect to the appellant’s paramilitary claim to fear harm, the IAA also found that the appellant had specifically mentioned two paramilitary groups, Karuna and Pillayan, as causing trouble for his brother. On the basis of country information, the IAA found that these were among a number of splinter groups which had developed from disputes within the LTTE into paramilitary organisations and “had close connections with the security agencies during the civil war and in the period immediately after the war” (IAAR at [13]). While accepting that the appellant had a subjective fear of harm from paramilitary groups and that there were reports of ongoing kidnappings and “white van” abductions, the IAA was not satisfied that the country information supported his fear of harm as being (objectively) well-founded (IAAR at [14]). In reaching this conclusion the IAA reasoned as follows.

(1)    While there were indications that the power of the paramilitary groups may have lessened after the war, other agencies continued to report activity by these groups in the aftermath of the war (referring to a report by the Danish Immigration Service, “Human Rights and Security Issues concerning Tamils in Sri Lanka”, dated 1 October 2010, a report dated 11 February 2015 by the Immigration and Refugee Board of Canada on the treatment of suspected members or supporters of the LTTE in Sri Lanka, and a report by the US Department of State, “Human Rights Report 2014 Sri Lanka”, dated 25 June 2015 (IAAR at [15]-[17]).

(2)    In a critical passage on which the appellant relied, the IAA found that:

I accept that the paramilitary groups were closely linked to the security agencies during the war and under the repressive Rajapaksa government; however I take account of information before the delegate that Tamil paramilitary groups have renounced paramilitary activities [footnoting the 2015 DFAT report] and that the power of the Karuna and Pillayan groups specifically has diminished. The security situation in Sri Lanka has improved since the change of government in January 2015 and the Sirisena government has made advances to work toward greater reconciliation with the Tamils.

(IAAR at [18]; emphasis added.)

(3)    In support of this view, the IAA referred among other things to a number of reforms enacted by the new government of Sri Lanka regarding reconciliation with Tamils and to address human rights issues at the regional level, and the advances made by that government towards reconciliation in 2015 as reported by the US Department of State (IAAR at [18]-[19]).

(4)    The IAA then found in a further passage also relied upon by the appellant, that:

I accept that there are credible reports of arrests of people with LTTE links and those involved in Tamil separatist activities, but the widespread arbitrary harassment of Tamils during the Civil War and post war years has eased. While the applicant’s brother was an LTTE member this did not attract adverse attention from the authorities during the war, nor afterward and I am not satisfied that the applicant would be imputed as an LTTE/Tamil separatist supporter now on the basis of his brother’s history. Cited in the post-interview submission are reports from TamilNet of the arrests and detention in March 2016 of 23 Tamils, some of whom were possibly linked to a person alleged to have possessed explosives, though others arrested were not aware why they had been detained, and the International Crisis Group May 2016 report that notes the continued reporting of abuse of Tamils suspected of LTTE links. Reporting on the 2015 year the US State Department noted cases of deaths and detention by the security forces with the assistance of paramilitary groups and, while stating these included ordinary civilians, noted the particular targets were Tamil politicians, humanitarian workers, and journalists. I am satisfied that overall country information indicates that while the security agencies harassed and abused the civilian population this has eased since the cessation of hostilities and the move to greater political cooperation under the Sirisena government. The paramilitary groups operated with impunity as associates of the security agencies during the war and immediately afterwards, and the US State Department reported “that EPDP and Karuna group members supported security force intelligence gathering that included the torture and physical and sexual abuse of Tamils accused of LTTE connections in the five years since the end of the war”. However, noting the curbing of the excesses of the security agencies since that time, and the indications that the power base of the Karuna and Pillayan groups has diminished, I am not satisfied that the applicant’s fear of harm from paramilitary groups is well founded. Nor am I … satisfied that they would harm the applicant in retribution for his brother’s escape from them in 2012.

(IAAR at [20]; emphasis added; citations omitted.)

3.3    The decision of the FCC

17    The appellant applied for judicial review of the IAA decision in the FCC, where he was unrepresented. As none of the grounds on which judicial review was sought are pressed on the appeal, it suffices to note that the application was dismissed by the FCC with costs on 21 February 2020 (the FCC decision). I note that the hearing of the appeal from this decision was delayed due to restrictions on in-person hearings as a result of the COVID-19 pandemic.

4.    CONSIDERATION OF THE SUBMISSIONS MADE ON APPEAL

4.1    Did the IAA fall into error?

18    The appellant submits that the IAA fell into error in apparently having considered the only relevant paramilitary groups to be the Karuna and Pillayan groups, whereas the appellant claimed fear from Tamil paramilitary groups without limiting himself to these groups “and so it is clear the relevant groups could be those which did not renounce, or indeed those which did renounce but which are reported creditably as being still involved in Sri Lanka and in criminal activities” (AS at [7]). (I note in this respect that the appellant’s counsel observed that the spelling of these two paramilitary groups was not consistent throughout the documents before the IAA, but accepted that they were the same groups notwithstanding the differences in spelling.)

19    The appellant’s submission, with respect, cannot be sustained as the appellant’s claim specifically concerned the Karuna and Pillayan groups for the reasons set out below.

20    In his irregular maritime arrival entry interview and as noted by the IAA in its reasons at [13], the appellant responded to the question “why did you leave your country of nationality” by specifically referring to these groups, stating (at AB10):

Life Threatening and my brother was LTTE - then he left LTTE and then he went to IOM and talk to him and they gave him a letter saying he won’t be getting problem by government, after that in 2012, Karama and Pillaijan Groups he was getting problem, so after that he could not stay in Sri Lanka and went to INDIA in August last year, after that they came to my home, unknown people and ask for my brother and they hit me …

(Emphasis added.)

21    Furthermore, the IAA explained in its reasons at [14] that, in response to the interviewing officer’s assertion at the SHEV interview that the Karuna and Pillayan groups were no longer influential in Sri Lanka, and that Pillayan himself was in prison facing criminal charges, “the applicant responded that these groups continue to operate in Sri Lanka and he fears harm from them” (emphasis added).

22    Counsel for the appellant, however, relied upon the appellant’s statutory declaration dated 1 February 2016 (AB61) and in particular upon the appellant’s statements that:

(1)    in early 2012 “unknown armed men who spoke both Tamil and Sinhala would come in search of [his] brother” from whom his brother feared harm, and as a consequence his brother had eventually left Sri Lanka for India (appellant’s statutory declaration (ASD) at [33]-[35] (emphasis added));

(2)    after his brother left Sri Lanka, in 2012 “unknown armed men who spoke both Tamil and Sinhala” kept visiting the appellant’s home in search of his brother and in August 2012, assaulted the appellant and threatened to take him away and shoot him if his older brother “did not hand himself up” (ASD at [36]-[39] (emphasis added));

(3)    about 25 days later, “the armed men once again came home” asking for the appellant, as a consequence of which the appellant and his family decided he should leave Sri Lanka as it was not safe for him to live there (ASD at [40]-[44]);

(4)    Tamil paramilitary groups “continue to operate in Sri Lanka and work closely with the Sri Lankan government” and the appellant believed that “the armed Tamil and Sinhala speaking men were members of a Tamil paramilitary group” (ASD at [45]); and

(5)    if he were returned to Sri Lanka, he:

fear[ed] being targeted by the Tamil paramilitary groups as [he] went into hiding after [he] was sought after by them. Members of the Tamil paramilitary group would seek revenge as they not have not been able to find [his] brother who they know was a member of the LTTE.

(ASD at [46].)

23    It is true, as the appellant’s counsel emphasised, that the appellant did not specifically identify the Tamil paramilitary groups from whom he feared harm if he returned to Sri Lanka in his statutory declaration, describing them only as “unknown armed men who spoke both Tamil and Sinhala”. However it is equally clear that, contrary to the appellant’s submissions on the appeal, the appellant’s claim was not that he feared harm generally from paramilitary groups in Sri Lanka, but only from those who were seeking his brother and had harassed, threatened and assaulted the appellant. Those groups had earlier been identified as being the Karuna and Pillayan groups by the appellant in his irregular maritime arrival entry interview and at his SHEV interview (see [21] above).

24    It follows for these reasons that no error has been established in the IAA’s finding that the appellant’s “fear of harm in Sri Lanka is from the paramilitary group who harassed his brother in 2012 and then threatened the applicant”, being the Karuna and Pillayan groups (IAAR at [13]); and, therefore, no error has been established in the IAA’s finding at [18] and [20] of its reasons that it was not satisfied that the appellant’s fear of harm from paramilitary groups was well-founded, given the country evidence establishing that the power of those groups had diminished. Those findings cannot be legally unreasonable where they amount to no more than the IAA addressing the question of whether the appellant’s claims to fear harm from certain paramilitary groups are objectively well-founded in light of its assessment of the country evidence. That suffices to dispose of the appeal.

25    Further and in any event, the appellant’s submission that the IAA misunderstood and failed to give appropriate weight to the 2015 DFAT report should be rejected. Specifically, the appellant submitted that because the IAA had stated that it took into account “information before the delegate that Tamil paramilitary groups have renounced paramilitary activities” (IAAR at [18]), the Court should infer that the IAA wrongly considered that the 2015 DFAT report stood for the proposition that “all Tamil militant groups ‘have renounced paramilitary activities’” (AS at [2]). With respect, that submission takes the phrase in question out of context, and ignores the IAA’s careful consideration of country evidence from a number of different sources and its specific acknowledgement of credible reports by those sources of some continued activity by Tamil militant groups (see IAAR at [15] and [17]). Read in this context, it cannot be said that the IAA considered the 2015 DFAT report to have indicated that paramilitary activities had been renounced by all Tamil militant groups in Sri Lanka.

4.2    If error by the IAA had been established, would it have been material?

26    Finally, even if the IAA had misunderstood the 2015 DFAT report, the question is whether any such error was material and, therefore, jurisdictional in nature. The relevant principles were summarised by the Full Court in BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151; (2020) 280 FCR 26 at [29] as follows:

There is no doubt that just because the alleged errors were factual enquiries does not mean they are precluded from constituting jurisdictional error. However, an erroneous finding of fact will typically not amount, in and of itself, to jurisdictional error. A finding of fact involving an error might constitute jurisdictional error if, for example, it is shown to be irrational, or unreasonable, or lacking in an intelligible justification … Further, in order to establish jurisdictional error, the factual error must be material in the sense that there is a realistic basis to consider that the decision-maker’s ultimate conclusion might have been different if the alleged error had not been made. Where the impugned finding is but one of a number of findings that independently may have led to the IAA’s ultimate conclusion, jurisdictional error will generally not be made out.

(Citations omitted.)

27    It is also important to bear in mind that the IAA’s reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 158 CLR at 272; [1996] HCA 6 (Brennan CJ, Toohey, McHugh and Gummow JJ, quoting with approval Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (the Court); [1993] FCA 456).

28    Applying these principles, it follows that, in determining whether the IAA decision is affected by jurisdictional error, it is necessary to have regard to the entirety of the IAA’s reasoning process. In this regard, the Minister correctly submitted that no material, and therefore no jurisdictional, error was established for the following reasons:

… the IAA did not make a finding that “all Tamil militant groups ‘have renounced paramilitary activities”. The appellant’s focus on the one sentence in [IAAR] [18] demonstrates the applicability of the High Court’s cautionary remarks in Wu Shan Liang.

Instead, the relevant finding that was made by IAA was that at [IAAR] [20], namely that it was “not satisfied that the applicant’s fear of harm from paramilitary groups is well-founded”. That finding was supported by many reasons, including:

(a)    country information from a range of sources … ;

(b)    the change in security situation following the change of government in January 2015 and other advancements since that time;

(c)    the fact that it was not satisfied that the applicant would be imputed as an LTTE/Tamil separatist supporte[r] now; and

(d)     the fact that it was not satisfied that paramilitary groups would harm the appellant in retribution for his brother’s escape in 2012.

(RS at [39]-[40]; emphasis in original.)

5.    CONCLUSION

29    For these reasons, the application for leave to raise ground 1 of the amended notice of appeal is granted but the appeal must be dismissed with costs.

Associate:

Dated:    4 November 2022