Federal Court of Australia

BAO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 550

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The appeal be dismissed as incompetent.

3.    The Applicant pay the First Respondent’s costs as taxed or agreed.

4.    The name of the First Respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

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

REASONS FOR JUDGMENT

PERRAM J:

1    This is a purported appeal from the former Federal Circuit Court of Australia. That Court dismissed the Applicant’s application for judicial review of an earlier decision of the Immigration Assessment Authority (‘the Authority’). The Authority had affirmed an earlier decision of a delegate of the Minister for Immigration to refuse the issue to the Applicant of a protection visa.

2    The history of the Applicant’s claims are set out in the reasons of the primary judge: BAO18 v Minister for Immigration [2020] FCCA 2290 at [3]-[6].

3    The appeal was filed two days outside the time prescribed for the filing of an appeal: Federal Court Rules 2011 (Cth) r 36.03(a). During the hearing, the Applicant made an application for an extension of time within which to file the appeal.

4    The Applicant’s explanation for why he filed his appeal out of time was that he was unrepresented. I am prepared to assume that if the proposed appeal were otherwise of merit then this explanation would suffice. For the following reasons, however, the proposed appeal does not enjoy sufficient prospects of success to justify the extension of time. I will therefore dismiss that application. This leaves on foot the Applicant’s notice of appeal. Without the extension of time, the appeal is incompetent and must be dismissed. I note insofar as the First Respondent’s costs are concerned that the Minister did file a notice of objection as to competency.

Relevant Social Group

5    The Applicant seeks refuge from Sri Lanka on the basis of his membership of the particular social group consisting of young Tamil males from Trincomalee District with an imputed association with the Liberation Tigers of Tamil Eelam (‘LTTE’).

(a) Trincomalee District

6    Trincomalee District is on the eastern side of Sri Lanka and is a Tamil centre. The Applicant is from Trincomalee and the Authority accepted that if repatriated to Sri Lanka he would return there.

(b) The LTTE and the civil war

7    Between July 1983 and May 2009 there was a full-scale conflict between the LTTE and the Sri Lankan military which resulted in the defeat of the LTTE. As the Authority noted in this case at [13], at its peak the LTTE had an armed force of approximately 18,000 combatants with an extensive administrative, political and intelligence support structure. Following the civil war, any association with the LTTE was grounds for arrest.

Persecution claims

8    The Authority accepted that the Applicant’s family home in Sambur was destroyed during the civil war and that his family relocated to a refugee camp. It also accepted that as a young Tamil male who had just moved from a Tamil controlled area into the refugee camp it was likely that the Applicant had been interrogated by the authorities to ascertain if he had any connections with the LTTE and that this had occurred more than once. It also accepted that during one interrogation he was detained for a day, physically mistreated and sexually assaulted. Following this he was released and moved out of the refugee camp. The Authority concluded that after this interrogation in 2006 he was never again detained or questioned in the 6 years leading up to his departure from Sri Lanka in 2012.

9    The Applicant’s persecution claims centred around his claim that the authorities continued to look for him which he made good by reporting visits made to his parents querying where he was. The Authority was inclined to accept these claims for the period during which the civil war continued but was less convinced these visits occurred after the war’s cessation although it did not wholly discount these claims.

10    Ultimately, it rejected the Applicant’s claims for protection because it did not think that he would have been of any interest to the authorities after 2006 because he was not in fact associated with the LTTE.

Federal Circuit Court

11    The Applicant was unrepresented in the Federal Circuit Court and his originating application did not provide any particulars of the way in which the case was being put. The trial judge rejected each of the Applicant’s grounds of appeal. The grounds of appeal in this Court are:

1.    That there is jurisdictional error in the Federal Circuit Courts decision.

2.    The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent’s recommendation that the [Applicant] was not a person to whom Australia had protection obligations was neither logical nor rational.

12    Largely the same problem arises. I do not think that in this form the appeal would have any prospects. I have examined the reasons of the Authority and the Federal Circuit Court. I am unable to discern any errors. The Authority examined two pieces of new information on the basis that it was satisfied that there were ‘exceptional circumstances’ within the meaning of s 473DD of the Migration Act 1958 (Cth) (‘the Act’) which justified their consideration. One was a letter provided by the Applicant from his father which the Authority concluded it should examine as new information. The other was updated country information about Sri Lanka contained in a Department of Foreign Affairs and Trade (‘DFAT’) report dated 23 May 2018. I perceive no obvious problems with the Authority’s receipt of the letter but its receipt of the updated DFAT report warrants further consideration.

13    Section 473DD of the Act provides that the Authority must not consider new information unless it is satisfied that there are ‘exceptional circumstances’ to justify its consideration. This power must be considered and, where appropriate, exercised within the bounds of reasonableness, which also mark the limitation of this Court’s jurisdiction on review: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 (‘M174’) at [21] per Gageler, Keane and Nettle JJ, [86] per Gordon J, [97] per Edelman J; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [3] per Kiefel CJ, Bell, Gageler and Keane JJ.

14    The Authority did not provide reasons for exercising its discretion under s 473DD. It was not required to do so by s 473EA given it was exercising a procedural power: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 (‘BVD17’) at [16] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ, Edelman J agreeing at [44]; BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365; 93 ALJR 1091 at [45] per Thawley J. This mirrors the position at common law: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 (‘Osmond’) at 662-665 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ agreeing.

15    In BVD17, it was held at [40] that, given the Authority was not required to provide reasons, its failure to mention a procedural discretion could not, without more, support an inference that it did not consider exercising the discretion. This situation differs from the situation in BVD17 because here it is clear that the Authority did exercise the discretion. However, the reasoning in BVD17 supports the conclusion that the Authority was under no duty to provide reasons for the exercise of that discretion. Nevertheless, in some circumstances, the absence of any reasons for a decision may lead a court to infer that there was no good reason for the decision: Osmond at 663-664 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ agreeing. This, however, is purely a question of fact in any particular case. Often the absence of any reasons for a decision will not permit any inference to be drawn about the nature of the reasons underpinning it.

16    Here I would not infer that there was no reason for the Authority’s decision to exercise its discretion under s 473DD to consider the updated DFAT report. Rather, I would infer that the reason was that the Authority thought that the existence of an updated DFAT report which had only become available after the delegate had made his decision was an exceptional circumstance.

17    I have some tentative doubts as to whether the availability of new country information could reasonably constitute an exceptional circumstance within the meaning of s 473DD and am prepared to assume (but not decide) that it could not: see M174 at [30] per Gageler, Keane and Nettle JJ. Even then, the Applicant would still need to establish that the Authority’s unreasonable exercise of its discretion was material to its decision. This would require the Applicant to prove historical facts from which it could be conjectured that there was a realistic possibility that the Authority could have made a different decision: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441.

18    I do not consider that the Authority’s consideration of the updated DFAT report was material to its decision. Broadly speaking, the Authority used the report in three ways:

(1)    in favour of the Applicant at [13] and [20];

(2)    in parallel with other evidence at [25], [27], [28], [29], [30] and [33]; and

(3)    in isolation against the Applicant at [30] and [31].

19    The two instances of the updated DFAT report being used in isolation serve to demonstrate that any error on the part of the Authority in considering it does not meet the materiality threshold required to constitute a jurisdictional error. At [30], the Authority relied on the updated report to note that ‘DFAT states it is their understanding returnees are not subjected to mistreatment during processing at the airport’. This was a relatively insignificant link in the Authority’s chain of reasoning at [27]-[30] to the conclusion that the Applicant did not face a real chance of being tortured or facing other harm when being processed or detained for a short time at the airport upon his return to Sri Lanka. In reaching that conclusion, the Authority had separately found that there was no evidence of failed asylum seekers being subjected to torture, including sexual assault, at the airport upon their return. The delegate, who of course did not have access to the updated DFAT report, reached the same conclusion for much the same reasons as the Authority on this aspect of the Applicant’s claim.

20    At [31] of its decision, the Authority noted DFAT reports that bureaucratic inefficiencies, rather than official discrimination, are the biggest challenges for returnees as there can be long delays in accessing welfare, opening bank accounts and finding employment. Having already rejected the crux of the Applicant’s claim of harm on the basis of being a failed asylum seeker at [30], this was not material to the Authority’s decision.

21    For completeness, I have also considered whether the Authority unreasonably failed to exercise or consider exercising its discretion to invite the Applicant to comment on the updated DFAT report under s 473DC. As noted above, the Authority is not required to give reasons for its exercise or non-exercise of this procedural discretion so its failure to mention the discretion is not on its own sufficient to support an inference that the exercise of the discretion was not considered: BVD17 at [40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. In the absence of any other compelling reason to do so, no such inference can be drawn: cf. Osmond at 663-664 per Gibbs CJ.

22    Proceeding then on the basis that the Authority decided not to exercise its discretion under s 473DC, I do not consider that doing so was unreasonable in the context of the statutory scheme. In particular, the discretion in ss 473DC(1) and (3) must be read in light of s 473DC(2), which provides that the Authority ‘does not have a duty to get, request or accept, any new information’ in any circumstances, and s 473DE(3)(a), which expressly contemplates that new country information can be used to affirm a decision without inviting comment from an applicant: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [45]-[49] per Thawley J. The manner in which the updated DFAT report was used by the Authority, to which I have referred above, also supports this conclusion. This was not a case where new information gave rise to a material new issue or was used to support materially different conclusions to those reached by the delegate: cf. Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; 253 FCR 526.

23    During the course of the hearing, the Applicant advanced a number of reasons why the Authority should have accepted his claims for protection. Making the assumption that each of these submissions was correct, none is capable of establishing a jurisdictional error on the part of the Authority.

Result

24    The extension of time application will be refused and the appeal dismissed as incompetent. The Applicant must pay the First Respondent’s costs as taxed or agreed. The name of the First Respondent should be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

Associate:

Dated:    30 May 2023