Federal Court of Australia

AHS17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 316

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore and revised from transcript)

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (also referred to as the IAA). The Authority had affirmed a decision of a delegate of the first respondent Minister not to grant the appellant a Safe Haven Enterprise Visa (SHEV), a kind of protection visa.

2    It is convenient to reproduce the primary judge’s summary of the claims made by the appellant in his visa application, of the delegate’s finding about those claims, and of the Authority’s findings about those claims and certain additional claims, omitting only peripheral claims that are not the subject of this appeal, and omitting footnotes.

Claims for protection

[6]    The applicant stated his claims for protection on a number of occasions. It would be convenient if I first set out the claims the applicant made in his application for a SHEV; and they are as follows:

a)    The applicant is a Tamil, and a Hindu. He was born in Jaffna.

b)    The applicant halted his studies because there were always long periods of disturbances, and the school would regularly close. The applicant then worked at a store as a shop assistant. His father worked at a different store three to four kilometres away; and he would drop off the applicant at his work, and collect him from his work after the applicant’s father finished his work.

c)    In June 2006 there was a “claymore mine attack” in Jaffna, Manakora Junction, where the applicant’s father worked. The Sri Lankan Army (SLA) took the applicant’s father on suspicion of being involved in the bomb blast. He was beaten as a result of which he was hospitalised. The applicant attached a newspaper article about the bomb blast in which the applicant claims his father’s name appears.

d)    After this the applicant’s father was interrogated regularly, and on one occasion the applicant was with his father and was consequently detained by the SLA. The applicant’s father was hit in front of the applicant. The applicant was released at night after the applicant’s mother pleaded for the applicant to be released.

e)    Approximately six days later the applicant’s father returned home injured. The applicant’s father arranged for the applicant to live at a different address because he feared the applicant would be taken away. The applicant moved to “Uravakaturai” where he lived with his relatives, and worked in a grocery store at “Urukavaturai”. The applicant, however, was regularly interrogated there by the CID (that is, the Criminal Investigation Department), the EPDP (that is, the Eelam People's Democratic Party), and the SLA. He was continuously asked about the operations of the LTTE (that is, Liberation Tigers of Tamil Eelam) in the applicant’s area.

f)    In early 2009 the applicant obtained a national ID card and moved to Colombo. He there worked as a shop assistant. Police regularly visited the applicant to check he was registered with a police station. On the first occasion he was checked, the applicant was taken to the police station. The police called the applicant to the police station at “Urkavaturai” after the applicant provided his national ID card, and the police from “Urkavaturai” informed the police at Colombo “about the case that was on file about” the applicant and his father. At that time the applicant and his father were separately taken to a police station and investigated. The police viewed the applicant with suspicion because he had come to Colombo, and they accused the applicant of being involved with the LTTE and doing errands for them. The applicant’s boss, who was a fellow village man, paid “a large bribe” to have the applicant released.

g)    After this the applicant feared staying in Pettah and, through an agent, in May 2009 he secured a passport, but the agent cheated the applicant. Later in the year the applicant moved to “Kurungala [sic]” where the applicant registered with the authorities. The applicant did so “under the pretence that” the applicant’s father “was a different man”, M, “to avoid any problems, as” the applicant’s father “was continuing to face problems”.

h)    In early 2012 the CID took the applicant for enquiries. They asked the applicant who was his father. When the applicant said the name “M”, the CID said the applicant was lying. The way the CID were speaking suggested to the applicant that they wanted a bribe; so the applicant paid them a bribe and he was released. The applicant did not remain in one place. He did casual work changing locations and shops at which he worked.

i)    A month or two later M informed the applicant that the applicant was being searched for. The applicant feared for his safety, and he left Sri Lanka by boat.

[7]    At his interview before the delegate (SHEV interview) the applicant additionally claimed that his father had been missing since 2013; M was the applicant’s uncle and M had confessed to the applicant’s real identity when M was questioned by the authorities in 2012, and the applicant attended identification parades as part of interrogations at “Uravakaturai”. The applicant also claimed that between 2009 and 2012 the applicant paid bribes to police in Colombo and in Kurunegala. After the SHEV interview the applicant’s representative provided a submission in which it was claimed there was scarring on the applicant’s body which may expose him to a real chance of mistreatment on his return to Sri Lanka.

…

Before the Authority

[10]    After the matter was referred to the Authority the applicant’s representative provided to the Authority written submissions. With those submissions the representative provided what purports to be a letter dated 4 December 2016 from an “ex-member of Parliament”. The ex-parliamentary member claimed the applicant is an ardent supporter of the Tamil National Alliance (TNA), that in 2010 the applicant was helping the purported ex-parliamentary member in the election campaign, and that the applicant was helping the LTTE. The letter also claimed the applicant could not live peacefully in Sri Lanka, and, for that reason, he left Sri Lanka. The letter also stated that the EPDP and the SLA visit the applicant’s house to make enquiries about his whereabouts. The letter also referred to advice given by Amnesty International and by the foreign minister of Switzerland that those who intend to return to Sri Lanka should not do so; and that recently six or seven deportees had been taken into custody at Katunayake Airport on their return to Sri Lanka.

…

[13]    The Authority then made a number of findings. The Authority:

a)    accepted the applicant was detained with his father in late 2006 and released on the same day;

b)        accepted that in 2006 the applicant’s father was held for six days during which he was physically assaulted, and that, following a number of bomb blasts the applicant’s father was required to sign daily, and that he assisted the authorities to identify suspects;

c)    did not accept that following his one day of detention in late 2006 the applicant was a person of adverse interest to the CID, the police or any other authority, or that he quickly moved to “Urukavaturai” to evade those authorities, although the Authority did accept the applicant moved to “Urukavaturai” in early 2007;

d)    accepted that while in “Urukavaturai” the applicant was questioned by various authorities in relation to his involvement in LTTE activities;

e)    accepted that when he moved to Colombo the applicant did not follow registration protocols, as a consequence of which the applicant was viewed with suspicion and was required to sign at the police station daily for a period of time;

f)    did not accept the Colombo police contacted their counterparts in “Urukavaturai” who discovered the applicant and his father had a case on file; and that is because in his SHEV application the applicant said he was detained at Jaffna police station, not at “Urukavaturai” police station, and the applicant had been released from Jaffna police station three years prior in response to his mother’s plea;

g)    accepted the applicant was briefly detained by Colombo police but found the applicant was not of significant concern to the Colombo police because he was released following the payment of a bribe, and because in May 2009 the applicant was able to obtain a passport that would enable him to depart the country;

h)    accepted it to be plausible that when he moved to Colombo the applicant registered with M, but it did not accept he had any difficulty registering at that time or that he did so under the pretence he was M’s son;

i)    did not accept the applicant was arrested or tortured in around May 2012;

j)    did not accept the applicant left Sri Lanka in 2012 for the reasons he claimed because the applicant applied for a driver’s licence in June 2012 and the applicant claimed at his entry interview on 2 January 2013 that his father commenced arrangements for his travel five to six months before he departed for Australia;

k)    found the applicant’s oral evidence in relation to his being of interest to the Sri Lankan authorities and various groups between October 2009 and August 2012 to be “unconvincing, vague, and contradictory to information provided in his SHEV statement”; and, for these reasons, the Authority did not accept that while living in Kurunegala the applicant came to the adverse attention of the EDPD, the CID, the SLA, or the police because of any suspected links to the LTTE, or because of any suspected links between the father and the 2006 bombing, or because of his registration on M’s household card, or for any other reason;

l)    was not satisfied the applicant’s father is missing or hiding since 2013; and that is because in his SHEV application (which is dated March 2016) the applicant listed his father’s contact address at a place in Jaffna; and the applicant did not claim in the SHEV application that his father was missing; and

m)    did not accept the authorities have been seeking the applicant at his home since his departure from Sri Lanka.

[14]    In the light of these findings the Authority was not satisfied the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, because of his past experiences in Sri Lanka, or because of his family links, or because of having any adverse profile with the Sri Lankan authorities. Nor was the Authority satisfied that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, because of his Tamil ethnicity.

[15]    Next the Authority considered the claim made by the applicant’s representative that the applicant’s scars constituted “additional profile factors” that put the applicant at risk if he returned to Sri Lanka because the scars would be exposed to the authorities. The Authority was not satisfied the applicant would be at risk of harm from the scars. The Authority relied on there being no information about how the applicant obtained the scars; the applicant’s not having advanced in his SHEV application or at the SHEV interview a claim based on his having scars; the delegate’s noting that the issue of scarring was not examined during the SHEV interview, and that the delegate had not noticed any visible scarring during the interview; and the applicant’s representative not mentioning the scarring in the submissions he provided to the Authority.

[16]    The Authority then made a number of findings about what would occur to the applicant if he were to return to the Sri Lanka. The Authority accepted the applicant departed Sri Lanka illegally; that on his return he will be questioned by police and charged under the Immigrants and Emigrants Act and will be arrested at the airport in the course of which the applicant will be fingerprinted and photographed; he will be transported by police to the nearest Magistrate’s Court at the first available opportunity once investigations are completed after which responsibility for the custody of the applicant would lie in the courts and prison; the applicant might be held in prison until a magistrate is available; the applicant will be fined; and that none of these matters constitute serious harm, and they, in any event, are matters that are applied generally to persons who have left Sri Lanka illegally.

[17]    Having made these findings, the Authority concluded the applicant did not meet the definition of “refugee” given in s.5H(1) of the Act

[18]    Finally, the Authority considered whether the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act. Relying to a significant extent on the findings it had already made the Authority concluded there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm

3    The appellant raised four grounds of review in his original application filed in the then Federal Circuit Court, and a further six grounds of review in an amended application. The primary judge refused leave to rely upon any of the additional grounds of review in the amended application, a decision that is not challenged. Accordingly, it is only necessary to consider the original grounds of judicial review that are maintained on appeal.

4    Grounds 1 and 2 in the original application are maintained as appeal grounds 1 and 2 in an amended notice of appeal. The amended notice of appeal abandons appeal grounds 3 to 9, and adds appeal ground 10. Appeal ground 10 is a variation on appeal ground 1, dealing with the same subject matter but taking it a step further, such that it is convenient to deal with those two appeal grounds together.

Appeal grounds 1 and 10 (judicial review ground 1)

5    Appeal grounds 1 and 10 are respectively as follows, reproducing only the chapeau of each ground and omitting particulars:

The Immigration Assessment Authority (IAA) failed to consider additional profile that I raised about my scars in my body.

The Immigration Assessment Authority (IAA) failed to properly consider the Appellant’s claim that his scars would expose him to the authorities and thereby cause the Appellant to face a real chance of more than a short term imprisonment which would result in mistreatment, serious harm, systematic and discriminatory conduct.

6    The totality of the claim made by the appellant about scarring, contained in a submission by his migration agent after his interview with the delegate, was as follows (emphasis added):

If the applicant is returned to Sri Lanka, when questioned by the authorities, as all returnees are, his particular additional profile factors of the applicant will come to light. His scars on his body would exposed to the authorities. In these circumstances the applicant faces a real chance of more than short term imprisonment and as a consequence mistreatment whilst imprisoned. That there is a real chance of mistreatment whilst imprisoned is supported by a recent report of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment in May 2016. We humbly submit that this mistreatment would be serious harm and involves systematic and discriminatory conduct and would be by reason of the combined factors of the applicant’s Tamil ethnicity and his membership of a particular social group. These would be essential and significant reasons for the harm.

7    The delegate’s findings on this topic were:

(a)    at page 9 of the reasons:

Scarring on the applicant's body

In his further submission the applicant's agent raised the issue of scarring on the applicant's body which may expose him to a real chance of mistreatment upon return to Sri Lanka. While this was not examined at interview, and no scarring was visible while the applicant remained clothed, I accept as plausible that the applicant has some degree of scarring from his experiences in Sri Lanka.

(b)    at page 16 of the reasons (emphasis added):

Examples of the current categories of persons at real risk of persecution on return to Sri Lanka, whether in detention or otherwise were identified as being those who have had a significant role in post-conflict Tamil separatism, journalists or human rights activists who have criticised the government's human rights record, those who have given evidence to the Lessons Learned and Reconciliation Commission about the government's actions during the civil war and those whose names would appear on a computerised "stop" list accessible at the airport. This information was noted as still being current in the Country Information and Guidance report on Sri Lanka by the United Kingdom Home Office published in May 2016. The applicant does not meet any of these profiles and I therefore find that he would not be subjected to anything more than administrative screening upon his return to Sri Lanka. This administrative screening is due to laws which are generally applicable and enforced to achieve a legitimate state objective and will not result in there being a real chance of harm for the applicant. The country reports also do not support a conclusion that returnees and failed asylum seekers, including Tamil returnees and Tamil failed asylum seekers, or returnees who have body scarring, are being targeted and face a real chance of serious harm.

(c)    at page 17 of the reasons (emphasis added):

There is no information before me to indicate that the applicant's body scars would increase his risk of suffering significant harm if detained for a short period on return to Sri Lanka. I therefore find that the harm for departing Sri Lanka illegally that the applicant may incur on return to Sri Lanka is not significant harm.

8    The submission made to the Authority on behalf of the appellant did not mention the topic of scarring at all.

9    The Authority dealt with the topic of the appellant’s illegal departure from Sri Lanka, his status as a returning asylum seeker and the issue of the scars that he said he had and which he said he would impact upon his treatment if returned to his country as follows:

Illegal departure/Returning asylum seeker/Scarring

[34]    I accept that if the applicant returned to Sri Lanka he would do so as a failed asylum seeker returned from Australia. I also accept that the applicant would be identified by the Sri Lankan authorities as someone who departed Sri Lanka illegally.

[35]    In the post-SHEV interview submission, the applicant’s representative submitted that the applicant had ‘additional profile factors’ that put the applicant at risk if returned to Sri Lanka. Specifically, it is submitted that the applicant’s scars would be exposed to the authorities. There is no further information provided as to how or when the applicant obtained these scars and I note the applicant did not advance any claim of this nature in his SHEV statement or during the SHEV interview. In his decision of 15 November 2016, the delegate noted that the issue of scarring was not examined during the SHEV interview and that he had not noticed any visible scarring during the interview. The IAA submission is silent on the issue of scarring. I am not satisfied the applicant is at risk of harm from scars.

[36]    Having regard to the country information in the referred material and in particular in the 2015 DFAT report, I am not satisfied there is a real chance the applicant would be harmed by the Sri Lankan authorities by virtue of his return as a failed asylum seeker. In particular, I note that DFAT reports that thousands of Tamils have been returned to Sri Lanka since the end of the Sri Lankan civil war, including from Australia. Although there have been reported instances of returnees being harmed, the information before me indicates those were people with substantial links to the LTTE or those suspected of committing serious crimes. I am not satisfied the applicant is a person with that kind of profile. For these reasons I am not satisfied the applicant faces a real chance of serious harm due to being a failed asylum seeker from Australia, now or in the reasonably foreseeable future, if he returns to Sri Lanka.

[37]    Most Sri Lankan returnees, including those from Australia, are questioned by police on return and, where an illegal departure is suspected, are charged under the Immigrants and Emigrants Act (IAEA). DFAT understands that in most cases, these individuals have been arrested at Colombo International Airport. As part of this process, most returnees will be fingerprinted and photographed. They are transported by police to the nearest Magistrates Court at the first available opportunity once investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a Magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be held at a nearby prison. DFAT rates14 general prison conditions in Sri Lanka as not meeting international standards because of a lack of resources, overcrowding and poor sanitary conditions

[38]    I accept that as the applicant departed Sri Lanka without a passport, he may be found to have committed an offence under the IAEA. Country information from DFAT indicates that penalties applicable for passengers illegally departing in this context can include up to five years imprisonment and fines of up to SLR200,000; DFAT advises that in practice, penalties are applied on a discretionary basis and usually in the form of a fine. In particular, advice from Sri Lanka’s Attorney General’s Department to DFAT is that no returnee who left Sri Lanka unlawfully as a simple passenger has been given a custodial sentence for their breach of the IAEA. Fines are common, but the amounts vary depending on the circumstances of the case and can typically be paid by instalments.

[39]    On return to Sri Lanka, I find the applicant would be charged and fined under the IAEA and then released. In the event that the applicant elected to plead not guilty to the offence under the IAEA, he would either be granted bail on personal surety or have a family member act as guarantor. There is no suggestion the applicant was anything other than an ordinary illegal departee from Sri Lanka. In that context, I find that he would not face any chance of imprisonment, but it is highly likely that he will be fined. DFAT has assessed the risk of mistreatment for people suspected of an offence under the IAEA is low.18 As noted above, the applicant may be subjected to poor prison conditions during a short period of detention, but the prison conditions to which the applicant may be subject do not of themselves constitute serious harm as defined by the Act. Further, I am not satisfied the applicant will face a real chance of serious harm during any brief time spent in detention. On the evidence before me, I find the imposition of any fine, surety or guarantee would not of itself constitute serious harm. I have considered the possibility of a custodial sentence, but there is no country information before me that indicates that custodial sentences are being levelled against low profile illegal departees. In the context of a significant number of Sri Lankan nationals being returned to Sri Lanka, and the absence of any profile that would elevate the penalty the applicant would face, I find there is not a real chance that the applicant would face imprisonment.

[40]    I am also satisfied that the provisions and penalties of the IAEA are laws of general application that apply to all Sri Lankans equally. The law is not discriminatory on its terms, nor is there country information before me that indicates that the law is applied in a discriminatory manner or that it is selectively enforced. Accordingly, I am satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would not constitute persecution for the purpose of the Act. In light of this I find that the applicant does not face a real chance of serious harm from Sri Lankan authorities due to his illegal departure, travel to Australia or for any other reason.

10    The primary judge dealt with this topic as follows:

[21]    This ground may be taken to make three claims. One is that the Authority did not consider the applicant’s claim that he feared harm because of the scarring. I do not accept that claim. As I have already noted in paragraph 15 of these reasons, the Authority referred to the claim, and determined it adversely to the applicant for the reasons it gave.

[22]    A second claim the ground might be considered as making is that the Authority ought to have accepted the delegate’s finding that he was prepared to accept the applicant had scarring. If that is what the applicant intends to claim, I do not accept it. The “review” the Authority is required to undertake under s.473DB is a “de novo” review; that is, a consideration by the Authority of whether, on the material before it, the applicant meets the criteria for the grant of the SHEV

[23]    A third claim the ground might be considered as making is that the Authority itself should have obtained further information about the scarring. Such claim, if intended to be made, I also do not accept. It was for the applicant to place before the Minister all the material on which he intended to rely in support for his claims for protection. The applicant elected to make the claim that he feared harm from the scarring, not by displaying to the delegate the scarring or by subsequently providing to the delegate photographs of the scarring, or by providing evidence of the origins of the scarring; but by a bare assertion through his representative after the SHEV interview. There is nothing in the material that was before the Authority that ought reasonably to have obliged the Authority to consider whether it should exercise its discretion under s.473DC of the Act to obtain information relating to the applicant’s scarring.

11    The appellant submits in relation to ground 1 that the reference by the Authority to no information being provided as to how or when he obtained the scars that he said he had was irrelevant, because his claim was no more than that he had scarring which could expose him to the Sri Lankan authorities. I pause to note that it was never explained how the scars would come to the attention of the Sri Lankan authorities, given that they were not visible to the delegate.

12    The appellant relies upon the delegate having found that it was plausible that he had some degree of scarring from his previous experiences in Sri Lanka. He therefore submits that the Authority failed properly to review the delegate’s decision as required by s 473CC of the Migration Act 1958 (Cth). I note that the appellant does not grapple with the other references to scarring in the delegate’s reasons reproduced above, which may explain why the favourable assumption as to there being scarring was made in the first place.

13    In terms of asserted error on the part of the primary judge, the appellant submits that his Honour should have found that the Authority failed to properly consider his claim and should have accepted the delegate’s finding that he was prepared to accept that he had scarring, or alternatively should have obtained more information about the scarring, constituting jurisdictional error.

14    In relation to appeal ground 10, the appellant builds upon his submissions in relation to ground 1 and submits that the Authority:

(a)    was aware that his claim as to scarring had been accepted as plausible by the delegate but had no information about the scars themselves because they had not been observed during the SHEV interview;

(b)    was also aware that the claimed consequences were serious;

(c)    had the authority to get new information pursuant to s 473DC of the Migration Act concerning the nature and extent of the scars, details of when and how they were obtained, and other matters which it may have considered relevant, but declined to consider doing so and;

(d)    this was commented upon and so was clearly relevant to the decision on this topic at [35].

15    The appellant therefore submits that the existence of scarring would have been material to the decision to be made, but instead, in coming to the decision, the Authority took into account irrelevant matters, and in not considering getting new information committed jurisdictional error as it could not properly review the delegate’s decision without knowing more about the scarring. The findings on this topic by the primary judge are characterised by the appellant as being wrong and unreasonable.

16    I am unable to accept that the reasoning of the Authority involved taking into account anything that was irrelevant; to the contrary, the circumstances of the scarring was an obvious point to consider. Nor do I accept that the impugned observations made by the primary judge were either wrong or unreasonable.

17    The Minister submits that:

(a)    as the primary judge observed at [21], the Authority at [35] plainly did consider whether the appellant was at risk of harm from scars, but was not satisfied that he was;

(b)    the Authority gave a rational and reasonable explanation for that lack of satisfaction, including that the substance of the claim was only raised in a post-interview submission to the delegate, not in his statement of claims or interview with the delegate, and the delegate had, in the interview, not noticed any visible scarring;

(c)    the Authority’s conclusion was not surprising as nothing more than a bare assertion had been provided by the appellant;

(d)    as the primary judge observed at [23], the appellant chose not to display his scars to the delegate, or to provide photographs of them to the delegate or the Authority, nor provide evidence of their origin, making only a bare assertion;

(e)    it was for the appellant to put forward sufficiently detailed claims and supporting evidence in order to satisfy the Authority, citing s 5AAA of the Migration Act and CMP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 634 per Yates J at [77]; but he simply did not do so, despite being represented by a migration agent throughout;

(f)    insofar as the appellant asserts that the Authority failed to properly review the delegate’s decision, that is without substance, because, as the primary judge observed at [22], the Authority conducted a de novo review, as it was required to, and was not satisfied of any risk of harm;

(g)    insofar as the Authority might have reasoned differently to the delegate, nothing turns on that, citing DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [72], in which the Full Court (Reeves, Robertson and Rangiah JJ) found that the Authority is permitted to depart from findings made by the delegate, without alerting the appellant that it is doing so.

18    None of the above points, clearly set out the Minister’s written submissions, was even really addressed by the appellant, let alone met.

19    The Minister further submits, in relation to ground 10, that, insofar as the appellant contends that the Authority ought to have obtained new information from him in relation to the issue of scarring, no jurisdictional error is established. That is because, even if understood as alleging a legally unreasonable failure to exercise the power in s 473DC(3) of the Migration Act, there is no identification of exactly what “new information” should have been obtained, or why the appellant did not provide it himself. The Minister relies upon the observation made in BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; 281 FCR 594 at [173] by Snaden J (O’Callaghan J agreeing) that the issue is “whether the only course logically or rationally available to the [Authority] in the circumstances was to get and/or consider new information” from the visa applicant.

20    The Minister also submits in relation to ground 10 that regard must be had to the nature of the Part 7AA statutory scheme:

(a)    the “default position” in a Part 7AA review is that it is completed “on the papers”, without accepting or requesting new information, per s 473DB(1) and citing CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 per Thawley J at [48];

(b)    while the Authority could have taken the course of obtaining new information from the appellant about his scarring, especially in circumstances where the appellant himself chose to provide no more than scant information about his scarring to the delegate and chose to provide nothing further to the Authority, there was no duty or other obligation to do so: see s 473DC(2).

21    For completeness, the Minister also submits that the appellant’s assertion that the Authority had not considered whether to exercise the power in s 473DC(3) should be rejected, because, whether the Authority failed to consider exercising that power is a question of fact, upon which the appellant bears the onus of proof. The Minister submits that appellant does not state the basis on which he purports to discharge that onus and none is apparent, noting that the Authority is not required to give reasons for the exercise or non-exercise of procedural powers, such as those in s 473DC of the Migration Act. The Minister relies upon the observations of the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ at [16] and [40] that the mere failure of the Authority to mention a procedural power, or to give reasons for its exercise or non-exercise, cannot support the drawing of an inference that the exercise of the discretion was not considered. The Minister also relies upon QJYD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 962 per McKerracher J at [48], applying those passages in BVD17.

22    The appellant’s arguments as to error on the part of the primary judge in failing to detect jurisdictional error on the part of the Authority are weak to non-existent; whereas those of the Minister are compelling and should be accepted. Given the lack of detail in the claim made as to scarring, the other findings by the delegate on that topic, and the lack of this issue being raised at all in the submissions made on the review on behalf of the appellant, nothing more was required of the Authority in terms of consideration, and no foundation for any error at all in not seeking further information has been made out, let alone legal unreasonableness or some other basis for a finding of jurisdictional error.

23    Further, the argument that the Authority should have accepted the conclusion reached by the delegate on the topic of scarring is highly selective. While the delegate was, in effect, willing to assume that the appellant had the scarring that was asserted in the post-interview submission, despite not being visible or even being mentioned at that interview, in context that was because scarring alone was not identified in the country information as a basis for being singled out by the Sri Lankan authorities. It was for the appellant to make his case, including by way of advancing any further information to the Authority and asking it to be taken into account. It was not for the Authority to make his case for him, let alone upon such a slender and apparently inconsequential basis.

24    I am not satisfied that there was any error on the part of the Authority, let alone jurisdictional error. Nor can I discern any error on the part of the primary judge. It follows that these grounds of appeal must fail.

Appeal ground 2 (judicial review ground 2)

25    This appeal ground is as follows, reproducing only the chapeau and omitting particulars:

The IAA failed to consider whether I would be at risk if I failed to raise the fine because I departed illegally from Sri Lanka.

26    This ground turns on the findings of the Authority at [37] to [40], reproduced above, and on the primary judge’s reasoning as follows (at [26]):

The ground itself claims the Authority failed to consider the risk of harm the applicant would face if he failed to raise the fine which the Authority was satisfied would probably be imposed on the applicant for having left Sri Lanka illegally. The ground implies that a premise of the Authority’s being satisfied the applicant would not suffer serious or significant harm on his return to Sri Lanka was that the applicant would not only be fined, but that he would be able to pay the fine. That, however, is not what the Authority found. The Authority found that “the imposition of any fine, surety or guarantee would not of itself constitute serious harm”. In other words, this is a finding that the applicant’s being fined would not constitute serious harm.

27    Ground 2 turns not upon the imposition of a fine, but rather upon what would happen if the appellant did not pay any such fine. The appellant submits that in light of his accepted claims, it “must be possible” that he would face harm because of his past issues with the Sri Lankan authorities in the event that he was gaoled due to non-payment of fines, which is said to be “something which arises on the case” but was not the subject of any findings by the Authority. The appellant contends that the Authority committed jurisdictional error by constructively failing to deal with a claim that “arose on the case”, and that the primary judge failed to detect that error.

28    The Minister’s response is a simple and compelling one: despite being represented throughout by a migration agent, the appellant never made any claim that he would not be able to pay any fine imposed upon him, noting that the Authority also found that a fine could typically be paid by instalment: see [38] reproduced above. As the Minister correctly points out, there is no obligation to consider a claim that was not made, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 per Black CJ, French and Selway JJ at [62].

29    The Minister also submits that the issue of a fine being imposed was addressed by the delegate, making it even more inexplicable that the question of the appellant being unable to pay such a fine was not raised in the appellant’s submission to the Authority. The delegate said at page 17 of the reasons (emphasis added):

Given the applicant would only be detained for a short period of time (if he is detained) and noting the most likely punishment is to pay a fine, I am satisfied that the claimed harm does not constitute significant harm as defined in section 36(2A) of the Act. In coming to this finding I have also considered that the applicant has no particular personal vulnerabilities that would result in his short detention on return constituting cruel, inhuman or degrading treatment or punishment.

30    This ground of appeal is devoid of merit and must fail.

Conclusion

31    As all three grounds of appeal have failed, the appeal must be dismissed with costs.

Associate:

Dated:    6 April 2023