Federal Court of Australia

ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    This is yet another sad case involving a Sri Lankan Tamil asylum seeker endeavouring to overturn a decision by the Immigration Assessment Authority affirming a decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs which denied him a protection visa. Despite finding that the appellant had been detained and severely mistreated at the hands of Sri Lankan authorities on the basis of his ethnicity and supposed links to a political organisation, the Authority was nevertheless satisfied that the appellant was not a “person of significant interest to the [Sri Lankan] authorities”. The Authority determined, largely on the basis of that finding, that it was not satisfied that the appellant faced a real chance of harm if he was returned to Sri Lanka, or that Australia otherwise owed the appellant any protection obligations. The end result was that the appellant was found not to meet the criteria for the grant of a protection visa. A judge of the then Federal Circuit Court dismissed the appellant’s judicial review challenge to the Authority’s decision. The appellant appealed to this Court from that judgment.

2    The essential issue for determination in the appeal is whether the Authority made any error of a sort which vitiated the exercise of its review jurisdiction in the appellant’s case. The appellant contended that the Authority made three errors. The first alleged error was that the Authority was said to have engaged in a process of reasoning or fact-finding which was legally unreasonable. The primary judge rejected that contention. The appellant submitted that his Honour was wrong to do so. The second and third alleged errors related to the manner in which the Authority dealt with so-called “new information” which the appellant put before it and, specifically, whether the Authority dealt with that information in the manner it was required to do so under s 473DD of the Migration Act 1958 (Cth). The appellant did not put any arguments to the primary judge based on non-compliance with s 473DD of the Act and accordingly required the Court’s leave to raise the new arguments on appeal.

3    For the reasons that follow, none of the appellant’s appeal grounds have any merit and his appeal must be dismissed. References in these reasons to provisions in the Act may be taken to be references to those provisions as at the date of the delegate’s decision.

The appellant’s claim to be entitled to protection

4    The appellant is a citizen of Sri Lanka. He is of Tamil ethnicity and of Catholic religiosity.

5    The appellant arrived in Australia by boat on 13 October 2012. He did not have a visa which permitted him to enter Australia.

6    On 5 April 2016, the appellant applied for a species of protection visa called a Safe Haven Enterprise Visa (Subclass 790) visa.

7    A critical criterion for the grant of such a visa, in the appellant’s case, was that he was a non-citizen in respect of whom the Minister was satisfied Australia has protection obligations either because he was a refugee, or because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm: ss 36(2)(a) and (aa) of the Act. A refugee, for the purposes of the Act, is essentially a person who is unable or unwilling to avail himself or herself of the protection of his or her country of nationality or former residence owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a social group or political opinion, and there is a real chance that, if the person was returned to that country, he or she would be persecuted for one or more of those reasons: ss 5H and 5J of the Act.

8    The appellant claimed that he met the criteria for the grant of a protection visa. He claimed that he had a well-founded fear of persecution in Sri Lanka, or that there was a real risk that he would suffer significant harm if returned there, on a number of bases, including: his Tamil ethnicity; his Catholic religiosity; the fact that the Sri Lankan authorities believed that he was or had been a supporter of the Liberation Tigers of Tamil Eealam (LTTE); and the fact that, if returned to Sri Lanka, he would be seen to be a failed asylum seeker who had departed Sri Lanka illegally.

9    Given the limited grounds of appeal it is unnecessary to give a detailed account of the factual claims which the appellant advanced in support of his overall claim that Australia owed him protection obligations. The appellant’s claims were summarised in paragraph 8 of the Decision and Reasons of the Authority dated 27 January 2017, and paragraph 8 of the Judgment of the primary judge: ARO17 v Minister for Immigration & Anor [2020] FCCA 631. The appellant did not contend that those summaries of his claims were inaccurate or incomplete in any material respect.

10    The appellant identified three particular incidents that had occurred in Sri Lanka that he said supported his protection claim. The first two need only be briefly summarised because the findings ultimately made in relation to them did not feature prominently in the proceeding in the Circuit Court and are not the subject of any ground of appeal.

11    In the first incident, which occurred in about 1998, members of the Sri Lankan army came to the appellant’s bakery and assaulted the appellant and his brother, apparently on the basis that the local Sinhalese were jealous of the success of his business. In the second incident, which occurred in 2005 at the appellant’s guesthouse, the appellant and a number of guests were taken to the police station for interrogation because the house was in a high security area. The appellant was eventually released without charge after 28 days.

12    The third incident was the more significant incident. The findings made in relation to it were challenged in the Circuit Court proceeding and are the subject of the appellant’s first ground of appeal.

13    The appellant claimed that in July 2007, a number of men came to his shop and questioned him about his connections with the LTTE. He was blindfolded, beaten and then taken to an abandoned house and locked in a room. The next day he was questioned further and subjected to serious physical harm which, on just about any view, amounted to torture. The following day, two men came to the house and told the appellant that he needed to escape or else he would be killed. The men told him that there was a path at the rear of the house from which he could escape. The appellant did what was suggested and left the house and followed the path to a tea shop from which he telephoned his wife. The appellant did not go home, but instead travelled to another province in Sri Lanka. Two men later went to the appellant’s shop and asked his wife where the appellant was. The men told the appellant’s wife that the LTTE had helped the appellant escape and that if they saw the appellant they would shoot him.

14    The appellant subsequently fled Sri Lanka and travelled to India. While he was in India, the appellant’s wife was harassed by the Criminal Investigation Division of the Sri Lankan police. The appellant’s wife later fled Sri Lanka and now resides in Cyprus. The appellant resided in refugee camps in India until 2012, when he fled to Australia.

The initial refusal of the appellant’s visa application

15    On 16 December 2016, a delegate of the Minister refused the appellant’s visa application. It is unnecessary to dwell on the delegate’s reasons. It suffices to note that the delegate accepted that the first two incidents described by the appellant had occurred, but considered that the appellant’s evidence in respect of the third incident was not credible and found that the incident did not occur. The delegate was ultimately not satisfied that the appellant was a refugee or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed to Sri Lanka, there was a real risk that the appellant would suffer significant harm.

The Authority’s review of the decision to refuse the appellant’s visa application

16    The decision to refuse the appellant’s application for a protection visa was subject to the so-called “fast track” review process in Part 7AA of the Act, essentially because the appellant had arrived in Australia by boat without a visa. It is unnecessary to detail the intricacies and obscurities of the fast track review process other than to note that the decision to refuse the appellant’s application was subject to review by the Authority and that the review was to be conducted largely “on the papers”. There was, however, some provision for the Authority to consider “new information”.

The Authority’s findings concerning “new information”

17    The approach that was taken by the Authority to certain new information provided by the appellant is the subject of proposed appeal grounds 2 and 3. It is necessary, therefore, to give some attention to that issue.

18    Section 473DC of the Act provided as follows:

473DC Getting new information

(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a) were not before the Minister when the Minister made the decision under section 65; and

(b) the Authority considers may be relevant.

(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a) in writing; or

(b) at an interview, whether conducted in person, by telephone or in any other way.

19    Section 473DD of the Act provided as follows:

473DD Considering new information in exceptional circumstances

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.

20    The appellant gave the Authority a statutory declaration made by him, along with some written submissions. The written submissions attached a number of other documents. The Authority addressed whether the statutory declaration, submissions and attached documents contained or comprised new information, as defined in s 473DC(1), and if so, whether it was or was not prevented by s 473DD from considering that new information. The appellant’s proposed appeal grounds 2 and 3 concern the Authority’s reasons in respect of only a few short passages in the statutory declarations, submissions and attached documents.

21    The written submissions the appellant provided to the Authority included, at paragraphs 7 and 8, the following information:

Bodu Bala Sena (BBM) a militant Buddhist Monks Force (aka Buddhist Power Force) after the war officially ended in 2009 in Sri Lanka, started a campaign of violence erecting Buddhist Stupas (statues) and shrines, demolishing existing Hindu temples and shrines, attacks on Hindus, Christians and Muslims.

It is evident from the Sri Lankan government's reluctance to take any actions against these militant Buddhist Monks and they carry out their agenda unabated and claim that Sri Lanka belongs to only Sinhala Buddhists and all other minority are illegal arrivals and must get out….

22    Paragraph 10 of the written submissions asserted that the information in paragraphs 7 and 8 “should be considered new information in the circumstances as set out in section 473DD Migration Act 1958”.

23    The Authority made the following findings as to whether the written submissions contained new information to which it could have regard (Reasons at [5]):

The applicant provided written submissions to the IAA on 31 December 2016. These submissions refer to and challenge the delegate's decision and issues that were before the delegate and I am satisfied that this is not new information. I have considered the submissions on that basis.

24    The appellant’s statutory declaration included, at paragraph 10, the following information:

I was contacted by my friend pet named Mann previously living in our area Dematagoda married in Mannar and living there visited me in 2006 and requested to help the innocent Tamil detainees at the Welikada Prison to provide them with sim cards and mobile phones to make contact with their families and letters to be posted which I innocently obliged and these things were given to them with the assistance of the prison guards taking bribes.

25     Paragraph 21 of the statutory declaration was as follows:

Bodu Bala Sena (BBM) a militant Buddhist Monks Force (aka Buddhist Power Force) after the war officially ended in 2009 in Sri Lanka, started a campaign of violence erecting Buddhist Stupas (statues) and shrines, demolishing existing Hindu temples and shrines, attacks on Hindus, Christians and Muslims and claims that they have the support of the Sri Lankan Armed Forces and the police.

26    The Authority made the following findings as to whether the statutory declaration contained new information to which it could have regard (Reasons at [6], fourth and fifth dot points):

The submission attaches a number of further documents as set out and considered below…

•    A statutory declaration made by the applicant, dated 31 December 2016. To the extent that this declaration refers to and explains issues and evidence that were before the delegate, I am satisfied that this is not new information and I have considered those aspects.

•    The declaration does purport to raise one new claim of assisting LTTE prisoners held in Welikada Prison. I am satisfied that this is new information. Section 473DD(a) of the Act provides that the IAA must not consider new information unless there are exceptional circumstances to justify considering that new information. I am not satisfied that this information could not have been raised prior to the delegate's decision. I take into account the interview before the delegate where the applicant was told clearly that all relevant information had to be provided. The applicant was given assurances as to confidentiality and told that failure to provide complete information could have consequences for his claims. The delegate gave the applicant a number of opportunities to put forward any new claims or additional information throughout the interview and at the end of the interview, invited the applicant and his agent to submit any further information before the decision was made. The applicant did not provide any further information or make any new claims. Having regard to the comprehensive assurances given at the interview, together with the fact that the applicant was assisted by a migration agent at that stage, I do not accept the applicant's statement that he was too scared to disclose what would otherwise be a fundamental part of his claim for refugee status. Even if I was to accept that this information was credible, I am not satisfied that there are exceptional circumstances to justify considering this new information and I have not considered it.

27    One of the documents attached to the written submissions was a letter to the Authority from the Tamil Refugee Association Incorporated dated 28 December 2016. The letter included the following (on page 1):

We are also making arrangements to refer [the appellant] for specialised treatment and rehabilitation to the Service, Treatment and Rehabilitation of Torture and Trauma Survivors (STARTS) NSW and an initial interview with him showed that he is suffering from Post-Traumatic Stress Disorder (PTSD) due to travelling in an unseaworthy boat for several weeks and arriving in Australia, detention for six months in Australia and his previous torture and traumatic experiences in Sri Lanka.

28    The letter also included the following statement (on page 2):

Due to the gravity of the past experience of ill-treatments of him and the abduction, detention and torture and his association with his friend a LTTE supporter and the assistance he gave to the LTTE suspects in the Welikada Prison, returning [the appellant] to Sri Lanka now or in the near future will breach Australia's international obligations.

29    The Authority made the following findings as to whether the letter from the Tamil Refugee Association Incorporated contained new information to which it could have regard (Reasons at [6], second dot point)

A letter from the Tamil Refugee Association Incorporated dated 28 December 2016 and attaching a document titled References of Sri Lanka Country Information on Human Rights … post-dates the delegate's decision but refers to country information. The country information referred to all pre-dates the decision and there appears to be no reason why it could not have been provided earlier. I am not satisfied that there are exceptional circumstances justifying consideration of this information pursuant to s 473DD(a) and I have not considered this information.

Findings concerning the appellant’s claims

30    The Authority considered and made findings concerning the appellant’s claims that formed the basis of his protection visa application.

31    The Authority accepted that the incidents in 1998 and 2005 had occurred as described by the appellant: Reasons at [12]-[14]. The Authority found, however, that it was “satisfied that the [appellant] does not face a real chance of harm on the basis of any imputed connection to the LTTE arising from” those incidents: Reasons at [15]. That finding was not challenged in the Circuit Court and is not the subject of any appeal ground.

32    As for the appellant’s claim that he was detained and tortured in 2007, the Authority, unlike the delegate, accepted that the incident as described by the appellant had in fact occurred: Reasons at [16]-[26]. Despite that finding, the Authority found that it was satisfied that the appellant “was not a person of significant interest to the authorities” and that “he did not and does not face a real chance of harm for that reason”: Reasons at [24]. The Authority’s reasoning that led it to make those findings (at Reasons [23] and [24]) was central to the appellant’s challenge to the decision in the Circuit Court and is central to ground 1 of his appeal. Those paragraphs of the Authority’s reasons should accordingly be set out in full:

The applicant's description of how he escaped is not entirely convincing. His explanation that he was able to simply walk out via a (unsecured) steel plate across the back door does not seem consistent with the claim that the property was being used for interrogation purposes. However, the applicant did state that the property was an abandoned house rather than a permanent form of detention, so I am prepared to accept that security arrangements were ad hoc and not ideal. The applicant also stated that two of his captors had told him that this was a time he could escape. While there is no clear evidence of what their motives might have been and it is somewhat surprising, it does support the applicant's version of being able to leave the house without hindrance. Although I am not satisfied that the applicant's claim is factually correct in all details, I am prepared to accept that he was told by two persons that he could escape and that he then did so. I also accept as plausible that, given what he had just experienced, he was in fear of returning home.

There is no evidence to satisfy me that the authorities considered the applicant to have escaped from custody. I am prepared to accept that the applicant believes that the two men assisted his escape and it is possible that they did so for humanitarian reasons, but it is equally possible that the authorities had no further interest in the applicant and the two men simply allowed him to leave, even if they told him he was "escaping". I have considered country information about the treatment of suspected LTTE supporters at this time. While the claim that the applicant's wife was contacted by the authorities in the days after the "escape" is consistent with the authorities seeking the applicant, there is no evidence of any more intensive searching or investigation by the authorities. If the applicant was seen as a person of significant interest who had escaped, I would have expected a more intensive response including searching his family's and associate's properties. On this basis, although I accept that the applicant had a genuine subjective fear for his safety and that this was the reason he went to India, I am satisfied that the applicant was not a person of significant interest to the authorities. I am satisfied that he did not and does not face a real chance of harm for this reason.

(Emphasis added)

33    Those findings led the Authority to conclude that the appellant was not a refugee (Reasons at [49]) and that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that the appellant would suffer significant harm: Reasons at [59]. The appellant was therefore found not to meet the criteria for a protection visa. The Authority accordingly affirmed the delegate’s decision not to grant the appellant a protection visa.

The dismissal of the appellant’s application for judicial review of the Authority’s decision

34    The appellant pursued what was effectively a single ground of review in the Circuit Court. That ground was that the Authority’s finding (at Reasons [24]) that the appellant was not a person of significant interest to the Sri Lankan authorities was legally unreasonable, or was based on reasoning that was legally unreasonable. There were said to be two flaws in the reasoning.

35    The first alleged flaw related to the Authority’s observation that it was possible that the two men assisted the appellant’s escape for humanitarian reasons, but “equally possible” that the two men simply allowed the appellant to leave because he was of no further interest to the authorities. The appellant contended that the Authority’s reasoning in that regard unreasonably applied a binary choice. The appellant argued that if it was equally possible that that he had in fact escaped from continuing custody, that would have supported a finding that the appellant was of continuing interest to the authorities.

36    The primary judge rejected the contention that this aspect of the Authority’s reasoning was unreasonable. His Honour reasoned as follows (Judgment at [14]):

The first point overstates what is really no more than a discussion which sets the scene for the IAA’s reasoning concerning the matter truly in issue, which was whether the applicant was of sufficient interest to the Sri Lankan authorities to justify a fear of persecution. Whether or not the applicant was allowed to escape with the actual or tacit consent of the authorities was a matter of no substantive consequence. What did matter was what happened after he had. That is to say the IAA’s speculation as to what the circumstances of the applicant’s escape might reveal of the authorities’ attitude towards him did no more than provide a background setting for the decision which followed concerning the authorities’ subsequent inquiries into his whereabouts which did form the basis of the Tribunal’s reasoning and conclusion on the issue of his interest to authorities.

37    The second alleged flaw related to the Authority’s reasoning that if the appellant “was seen as a person of significant interest who had escaped, I would have expected a more intensive response including searching his family's and associate's properties” (Reasons at [24]). That reasoning was said to be legally unreasonable because it involved the imposition of an arbitrary standard of conduct upon the Sri Lankan authorities without regard to the particular circumstances.

38    The primary judge also rejected the appellant’s argument that this aspect of the Authority’s reasoning was unreasonable. His Honour reasoned as follows (Judgment at [17]):

The imposition of an arbitrary standard is a form of unreasonableness in that a purportedly objective criterion or test is imposed without it being demonstrated that it is appropriate to the circumstances. There was no arbitrary standard employed in this case, albeit that the IAA’s choice of words might give that impression. What was expressed by the IAA in this case was a counterfactual hypothesis, not a standard. Once the applicant escaped all that happened was that his wife was contacted, nothing more. It was the gap between what might have happened and what did happen that cast a shadow over the applicant’s claim to have a well-founded fear of persecution at the hands of the Sri Lankan authorities.

39    The primary judge accordingly found that the appellant had not demonstrated that the Tribunal’s decision and reasons involved any jurisdictional error and dismissed the judicial review application with costs.

Grounds of appeal

40    The appellant’s notice of appeal initially contained a single ground which essentially mirrored the arguments he had advanced in the Circuit Court. He claimed that the primary judge erred in rejecting those arguments.

41    The appellant sought leave to file an amended notice of appeal which added two additional grounds of review. Both of those new grounds involved arguments that were not raised in the Circuit Court. The appellant acknowledged that he required the Court’s leave to raise those two new grounds of appeal in the circumstances.

42    The two new grounds of appeal both concerned the Authority’s reasons for declining to consider new information which the appellant had provided to the Authority in a statutory declaration and written submissions.

43    Proposed appeal ground 2 was that the Authority “materially misconstrued and misapplied section 473DD of the Migration Act” (proposed appeal ground 2). This ground was based on the decision of the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37. In that case, the High Court held (at [10]-[12]) that the Authority is required to “assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a)” and that “if either the criterion specified in s 473DD(b)(i) or the criterion in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a)” (at [11]). If neither of the criteria specified in s 473DD(b)(i) or s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account and further assessment of the new information against the criterion specified in s 473DD(a) is redundant.

44    The appellant, in short, contended that in the case of some of the new information, the Authority did not first assess the criteria in s 473DD(b)(i) and s 473DD(b)(ii) before turning its mind to whether the criterion in s 473DD(a) was met. The appellant’s arguments in that regard are considered in more detail later in these reasons.

45    Proposed appeal ground 3 was that the Authority “failed to form the requisite state of satisfaction under s 473DD of the Migration Act 1958 in relation to the new information and thereby denied them the realistic possibility of a favourable outcome”. The appellant contended that there was new information before the Authority which the Authority did not address when it came to exercising its power and discretion in s 473DD to consider new information. The new information that the Authority is alleged to have failed to address is identified later in these reasons.

Should the appellant be granted leave to raise new grounds of appeal?

46    In the absence of reason to do so, a court will not readily allow an appellant to depart from the basis upon which a case had been conducted at first instance: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52 at [89]; see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46]-[48]. Appellants should not be readily permitted to raise arguments on appeal in this Court in the absence of any reasonable justification lest the proceeding before the primary judge come to be seen as “little more than a preliminary skirmish”, particularly in circumstances where the statutory scheme for migration appeals is that review applications are to be made in the Circuit Court, not this Court: Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at 7; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [31]; BXT17 v Minister for Home Affairs (2021) 283 FCR 248; [2021] FCAFC 9 at [21]-[24].

47    There are, however, “circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial”: Park v Brothers (2005) 222 ALR 421; [2005] HCA 73 at [34]. The circumstances in which a court may conclude that it is in the interests of justice to permit a new point to be raised on appeal include: where the appellant has provided a reasonable or adequate explanation for why the new point was not raised in the court below; where the fact that the point was not raised in the court below does not cause the respondent any material prejudice on appeal, in particular any prejudice arising from the fact that the new point could have been the subject of evidence in the court below had it been argued there; and where the new point is at least reasonably arguable or appears to have some merit. The importance of the litigation to the parties and the consequences that may flow from that litigation may also be a relevant consideration: SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [9].

48    Not without some misgivings, I am persuaded that the appellant should be granted leave to raise the new grounds on appeal, despite the fact that the alleged errors that are the subject of those grounds were not argued before the primary judge. That is primarily because I am satisfied that there is an acceptable reason why the arguments were not raised before the primary judge. While the appellant was represented by counsel in the court below, as will be seen, the new arguments which he wishes to raise on appeal are based on a judgment of the High Court that had not been delivered at the time of the hearing before the primary judge. I am also not satisfied that the Minister is prejudiced in any material way as a result of the fact that the new arguments were not raised before the primary judge. It is doubtful that the new arguments could have been met by evidence in the court below. Perhaps most significantly, while I am not ultimately persuaded that the new grounds are meritorious, they were at least reasonably arguable and worthy of consideration by the Court.

APPEAL GROUND 1 – Was the Authority’s reasoning concerning the “escape” legally unreasonable?

49    Before addressing the appellant’s argument that the Authority’s decision was legally unreasonable, it is necessary to first briefly address the principles that must be applied in approaching such a ground of review.

Relevant principles

50    The relevant principles in relation to legal unreasonableness were conveniently summarised in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94 at [131]:

First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making.

Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.

Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified.

Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that, within the boundaries of power, there is an area of “decisional freedom” within which a decision maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power. It is only if the outcome falls outside the area of decisional freedom that it can be said to be legally unreasonable.

Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the provisions of the statute which confer the relevant power. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope, and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact-dependant and to require careful attention to the evidence.

Sixth, where reasons for the decision are available, the reasons are likely to provide the main focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the Court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.

Seventh, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations, or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. The expressions that have been utilised in past cases include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”: Muggeridge [v Minister for Immigration and Border Protection (2017) 255 FCR 81] at [65]. It must be emphasised, however, that the task is not an a priori definitional or “checklist” exercise: [Minister for Immigration and Border Protection v] Singh [(2014) 231 FCR 437] at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope, and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

Eighth, defective, illogical, or irrational reasoning or fact finding may support a finding that the ultimate decision or exercise of discretion was legally unreasonable, particularly where the illogicality relates to a critical matter upon which the decision or exercise of discretion turned…

51    The following additional points were noted in respect of arguments based on alleged illogicality or irrationality in BHL19 at [143]-[146]:

...Illogical or irrational findings made by a decision maker “on the way” to a final conclusion may establish jurisdictional error: [Minister for Immigration and Citizenship v] SZMDS [(2010) 240 CLR 611] at [132]; see also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62]; Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 at [54].

It is critical to emphasise, however, that illogicality or irrationality in this context must mean something more than emphatic disagreement with the reasoning or findings: SZMDS at [124]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]. If “probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion”: SZMDS at [131].

It should equally be emphasised that, for an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: SZRKT at [148]. The “critical question” whether an administrative decision is irrational, illogical, and not based on findings or inferences of facts supported by logical grounds, “should not receive an affirmative answer that is lightly given”: SZMDS at [40]. A high degree of caution must be exercised before concluding that a finding is irrational or illogical in order to ensure that the Court does not embark impermissibly on “merits review”: SZMDS at [96]; SZVAP v Minister for Immigration & Border Protection (2015) 233 FCR 451; [2015] FCA 1089 at [14]-[15].

It should finally be observed, in this context, that in considering whether an administrative decision maker’s decision or exercise of discretion was the product of, or was materially affected by, illogical or irrational reasoning or factual findings, the decision maker’s reasons should not be the subject of over-zealous scrutiny: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].

Were the Authority’s findings unreasonable?

52    While I would perhaps not wholeheartedly embrace all of the primary judge’s reasoning, I am nevertheless not persuaded that his Honour erred in rejecting the appellant’s contention that the Authority’s decision was vitiated by legal unreasonableness. While reasonable minds might differ as to what inferences or conclusions could be drawn from the appellant’s evidence concerning his escape or release from detention and its aftermath, I am unable to accept that the Authority’s finding that the appellant was not a person of significant interest to the authorities, or its reasoning that supported that finding, was legally unreasonable either by virtue of the Authority imposing a binary framework or an arbitrary standard of reasoning in its decision.

Did the Authority unreasonably apply a “binary choice”?

53    The appellant contended that the Authority approached the factual issue as to whether he was of continuing adverse interest to the authorities in Sri Lanka by imposing or adopting a binary choice. The binary choice was said to be between whether the appellant had escaped from custody, or whether he had been permitted to leave by his captors because he was no longer of any interest to the authorities. That the Authority adopted that binary choice was said to be apparent from the fact that it said that while it accepted that the appellant “believes” that his captors assisted his escape, it was “equally possible” that they simply allowed him to leave: Reasons at [24]. The appellant submitted that by approaching the issue on the basis of that binary choice, the Authority excluded another possibility – that being that the appellant’s captors assisted him to escape for humanitarian reasons despite his still being of interest to the Sri Lankan authorities. That was said to be legally unreasonable.

54    I do not agree with that characterisation of the Authority’s reasons. While the Authority’s reasons may not be entirely pellucid or persuasive, a fair reading of the reasons does not support the appellant’s contention that the Authority unreasonably applied a binary choice and thereby excluded from consideration his claim that he escaped, albeit with assistance from his captors. Rather, a fair reading of the Authority’s reasons reveals that the Authority simply concluded, on the basis of the evidence as a whole, that the preferred inference was the appellant did not escape from custody. Rather, he was permitted to leave his detention because he was of no further interest to the Sri Lankan authorities. The Authority considered that to be the preferred or most likely scenario primarily because of the events that followed the appellant’s departure from the house in which he had been detained. In short, the Authority reasoned that if the appellant had escaped and was sought out by the authorities, there would have been a more “intensive response”, or more “intensive searching” for the appellant than the evidence revealed: Reasons at [24].

55    While not all decision-makers would necessarily have drawn that inference, I am unable to accept that the drawing of the inference, or the Authority’s reasoning which supported the drawing of that inference, was in any way illogical or unreasonable. Nor, as I have said, do I agree that the Authority’s reasoning involved any “unreasonable application of a binary choice”.

56    I should add that even if there was some flaw in the Authority’s reasoning in relation to that one factual finding, I am far from persuaded that any such flaw involved the sort of extreme illogicality or irrationality that would be capable of supporting a finding of legal unreasonableness. Nor am I persuaded that any flaw in the reasoning in respect of that factual finding necessarily infected the Tribunal’s ultimate decision. The important issue for the Authority was not how he had been able to leave the house where he had been detained. Rather, it was whether or not the appellant was of any real and continuing adverse interest to the Sri Lankan authorities. The Authority inferred from the evidence as a whole the appellant was not of any such continuing interest. I am not persuaded that this inference was irrational, or illogical, or not open on the evidence.

Did the Authority impose an arbitrary standard?

57    I also do not accept that the Authority’s reasoning involved the imposition of an “arbitrary standard of conduct upon the authorities without regard to their particular circumstances”. It was open to the Authority to infer from the evidence as a whole that the appellant was not considered by the authorities to be an escapee given the absence of any evidence of any “intensive searching or investigation by the authorities” in the period after he left the house. It was not illogical or unreasonable for the Authority to reason that, if the appellant was of any ongoing interest to the authorities and had in fact escaped from custody, the authorities would have been expected to actively and intensively search for him. While the appellant’s evidence included some evidence that suggested that the authorities had conducted some searches for him after he left the house, I am not persuaded that it was unreasonable or illogical for the Authority to find that those searches were active or intensive such as to support an inference that the appellant was of any significant or ongoing interest to the authorities after he left the house. Nor am I persuaded that the Authority’s reasoning in that respect involved the imposition of an arbitrary standard.

58    Even if reasonable minds might differ as to the drawing of that inference, the inference was at the very least open on the evidence and the drawing of the inference in all the circumstances did not involve any illogicality or irrationality. It certainly did not involve the sort of extreme illogicality or irrationality that must be shown before a finding of legal unreasonableness is made.

Conclusion in respect of ground 1

59    There is no merit in the appellant’s arguments that the Authority’s finding was infected by legal unreasonableness. The Authority’s reasoning and factual findings were not illogical or irrational. The primary judge was correct to reject the appellant’s arguments based on supposed binary choices and arbitrary standards.

APPEAL GROUND 2 – Did the Authority err in DECLINING to consider certain new information?

60    The appellant contended that the Authority did not assess whether two items of new information which he had provided to the Authority satisfied the requirements of s 473DD in the precise sequence identified in AUS17. The two items of new information that were the subject of this complaint were: first, the statement in paragraph 10 of the appellant’s statutory declaration that in 2006 he had helped the Tamil detainees at the Welikada Prison; and second, the brief reference in the letter from the Tamil Refugee Association to the fact that the appellant was suffering post-traumatic stress disorder (PTSD). The appellant claimed that the Authority did not assess those two items of new information against the criterion in s 473DD(b)(ii) before assessing whether the criterion in s 473DD(a) had been met.

61    That contention has no merit. In any event, I am not persuaded that any errors arising from the Authority’s treatment of those two items of new information were material errors.

Information about the appellant helping prisoners

62    The Authority’s reasons relating to statement in the appellant’s statutory declaration about helping detainees at the Welikada prison were set out in full earlier in these reasons. Those reasons, read fairly and without an eye keenly attuned to the detection of error (cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 490-1) indicate that the Tribunal was not satisfied that the information satisfied s 473DD(b)(ii) because it was not credible. The Authority was not satisfied that the statement about helping detainees was credible because it was a new claim that the appellant could have, but did not, advance at any time prior to the delegate’s decision, despite having been given numerous opportunities to do so. It was, in effect, a recent invention and therefore not credible.

63    The Authority also found that the information concerning the Welikada prison did not meet the criterion in s 473DD(b)(i) because the Authority was not satisfied that it could not have been provided to the delegate before the delegate’s decision. The Authority did not accept the appellant’s contention that he was afraid to disclose that information to the delegate. Because the Authority found that the information did not meet the criteria in either s 473DD(b)(i) or (ii), it was unnecessary for it to go on to consider whether it met the criterion in s 473DD(a), though the Authority nevertheless did so and found that it was not satisfied that there were exceptional circumstances to justify considering the new information.

64    It should perhaps be emphasised that the Authority’s decision pre-dated the judgment in AUS17. It is perhaps not surprising, in those circumstances, that Authority did not express its findings precisely in accordance with AUS17. In any event, the Authority was not required to engage in any “formulaic consideration” of s 473DD and if the Court is able to infer that the Authority in substance conduced the “requisite assessment” of s 473DD, no error will be made out: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79]; FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57 at [28]. For the reasons already given, I would infer that the Authority did conduct the requisite assessment of the new information in question and did not err in the manner contended by the appellant.

65    I should finally add that, even if the Tribunal did err in assessing whether the information concerning the appellant helping prisoners met the criteria in s 473DD, I am far from persuaded that any such error was material in the requisite sense. That is so for at least two reasons.

66    First, even if the Authority had concluded that the information met the criterion in s 473DD(b)(ii), the Tribunal made it abundantly clear that it would not in any event have found there to be exceptional circumstances to justify considering the information. That is perhaps not surprising given that the appellant did not advance any reasons for why there were exceptional circumstances. It follows that even if the Authority had assessed the information in the sequence specified in AUS17, it would have found that the information did not meet the criterion in s 473DD(a).

67    Second, and perhaps more fundamentally, I am not persuaded that there could have been a different outcome even if the Authority had found that the criteria in ss 473DD(a) and (b) had been met and had considered the information in question. The appellant claimed that he assisted Tamil prisoners at the Welikada prison in 2006. He did not claim that the Sri Lankan authorities knew that to be the case, or claim that he feared persecution, or that there was a risk that he would be harmed, on account of his having engaged in that conduct. He did not directly link the assistance he provided to prisoners in 2006 with his detention and torture in 2007 as a person suspected of being an LTTE supporter. He did not suggest that he was questioned about his conduct in 2006. In any event, the Authority ultimately concluded that, by the time the appellant’s detention ceased, he was of no ongoing interest to the authorities. I am not persuaded that there is any realistic possibility that the Authority would have concluded otherwise even if it had considered the information in question.

68    In those circumstances, I am not persuaded that any error on the part of the Authority in assessing whether the information in question met the criteria in s 473DD of the Act demonstrably deprived the appellant of a realistic possibility of a different outcome: see generally Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26 at [30]-[33].

Information about the appellant suffering from PTSD

69    The appellant contended, in effect, that the Authority did not assess the information in the letter from the Tamil Refugee Association concerning the fact that the appellant was suffering from PTSD. He submitted that this had a material impact on the Authority’s decision as that information corroborated both the appellant’s existing and new claims, in particular that he had provided assistance to Tamil detainees at Welikada Prison.

70    It may be accepted that the Authority did not refer to the information from the Tamil Refugee Association concerning PTSD in the section of its reasons where it dealt with new information. The Authority did, however, accept that the medical evidence suggested that the appellant was “displaying some symptoms of PTSD” and that the appellant had “lived through a traumatic incident including torture” and that it was therefore “plausible that he is suffering PTSD”: Reasons at [38]. It may, in those circumstances, be inferred that the Authority did in fact consider the information concerning PTSD in the letter from the Tamil Refugee Association. Alternatively, if it did not, any error arising from that omission could not possibly be said to be a material error given that the Authority in any event accepted that the appellant was suffering from PTSD as a result of his experiences. It could not have made any difference to the outcome.

APPEAL GROUND 3 – DID THE AUTHORITY FAIL TO CONSIDER OTHER NEW INFORMATION?

71    The appellant contended that the Authority did not “deal with” information in his statutory declaration and written submissions concerning the “situation” for Tamils in Sri Lanka after the official end of the war in 2009, including some general information concerning the activities of certain “militant Buddhist Monks”. The failure of the Authority to expressly consider whether that information was new information which it could consider was said to constitute a jurisdictional error.

72    It may be accepted that the Authority did not expressly refer to the paragraphs of the appellant’s statutory declaration and submissions which are the subject of this ground of appeal. It does not follow, however, that it can necessarily be inferred that the Authority ignored or overlooked that information, or otherwise failed to assess it against the criteria in s 473DD. That is because the Authority is not obliged to set out its decision or reasons about whether certain information meets the criteria in s 473DD: BYA17 v Minister for Immigration & Border Protection (2019) 269 FCR 94; [2019] FCAFC 44 at [46].

73    I am not persuaded that the circumstances of this case are such that it can be inferred that the Authority ignored or overlooked the information in question and thereby erred in not assessing whether it met the criteria in s 473DD of the Act. Indeed, it would appear from the Authority’s reasons that the Authority determined that the information in question was not new information because it comprised little more than the repetition or reiteration of the material and submissions that had been before the delegate. That is hardly surprising given the nature and generality of the information.

74    There could be no doubt that the Authority clearly read and had regard to the appellant’s statutory declaration and submissions. In relation to the written submissions, the Authority determined that the submissions “refer to and challenge the delegate’s decision and issues that were before the delegate” and that it was therefore satisfied that the submissions did not contain new information: Reasons at [5]. The Authority considered the submissions on that basis. The information in the written submissions which is the subject of this ground of appeal was of such generality that it was open to the Authority to see it as simply addressing the issues that were before the delegate and to therefore not regard it as new information.

75    In relation to the statutory declaration, the Authority similarly considered that, save for the new claim that the appellant assisted prisoners in the Welikada Prison, the statutory declaration essentially explained “issues and evidence” that had been before the delegate and was therefore not new information. The Authority considered those “aspects” of the statutory declaration. The information in the statutory declaration that is the subject of this appeal ground was again of such generality that it was open to the Authority to see it as simply explaining the issues and evidence that had been before the delegate and to therefore not regard it as new information.

76    It follows that it cannot be accepted that the Authority “failed to form the requisite state of satisfaction under s 473DD” in respect of the general information in paragraphs 20 to 22 of the appellant’s statutory declaration and paragraphs 6 to 8 of the appellant’s written submissions to the Authority. Rather, the Authority determined that the information in those paragraphs was not new information.

77    In any event, even if it could be said that the Authority failed to consider whether the information in those paragraphs of the statutory declaration and written submissions met the criteria in s 473DD, I am not satisfied that any such failure constituted a jurisdictional error. That is because any arising from that failure was immaterial. If the Authority had specifically addressed the information in question, it almost certainly would have determined that it did not meet the criteria in s 473DD. Moreover, even if the information was capable of meeting the criteria in s 473DD and the Authority could have had regard to it, the information was immaterial in the sense that could not have made any difference to the outcome of the Authority’s review of the delegate’s decision.

78    There is an air of unreality in the appellant’s contentions concerning the information in the appellant’s statutory declaration and submissions which are the subject of this ground of appeal. That is particularly so given that the appellant did not suggest that there was any basis upon which the information in question could have satisfied the criteria in s 473DD of the Act. Nor was any meaningful submission advanced as to how it could realistically be said that, had the information in question been found to have met the criteria in s 473DD of the Act and been considered by the Authority, it could possibly have made any difference to the outcome.

79    The information in question was plainly not “credible personal information” because it simply dealt with the general state of affairs in Sri Lanka. It therefore could not have satisfied the criterion in s 473DD(b)(ii) of the Act. Nor did the appellant claim that the information could not have been provided to the Minister or the delegate before the delegate made the decision. The source of the information was unclear. There is, therefore, nothing to suggest that the information was capable of meeting the criterion in s 473DD(b)(i).

80    Moreover, even if there was some basis for finding that the information was capable of meeting the criterion in s 473DD(b), the appellant did not advance any basis upon which it could be found that there were exceptional circumstances to justify the consideration of the information in question. It should be noted, in this context, that the Authority expressly found that country information referred to in the letter from the Tamil Refugee Association did not meet the criterion in s 473DD(a) of the Act.

81    It follows that, had the Authority specifically considered whether the information in question was capable of meeting the criteria in s 473DD of the Act, it would have been effectively compelled to find that it did not. It also follows that if, as the appellant contended, the Authority erred in failing to consider whether the information met the criteria in s 473DD of the Act, that error was immaterial.

82    Perhaps more significantly, even if it was open to the Authority to find that it could have regard to the information in question because it met the criteria in s 473DD of the Act, it cannot be accepted that the outcome of the Authority’s review could have been different. The Authority gave detailed consideration to information concerning the then current state of affairs in Sri Lanka concerning the treatment of Tamils: Reasons at [31]-[37]. That country information was sourced primarily from reports prepared by the Department of Foreign Affairs and Trade and the United Nations High Commissioner for Refugees. The Authority concluded, on the basis of that information, that the “levels of difficulty and disadvantage” faced by Tamils in Sri Lanka had decreased and was continuing to decrease to the point that the difficulties could not be said to amount to serious harm: Reasons at [35]. It cannot be accepted that the unsourced and general assertions in the appellant’s statutory declaration and written submissions concerning the state of affairs in Sri Lanka could have made any difference to the Authority’s conclusions.

83    There is no merit in appeal ground 3. The Authority did not err in failing to consider whether certain information in the appellant’s statutory declaration and submissions met the criteria in s 473DD of the Act. And if it did so err, that error was not a jurisdictional error because it was immaterial and could not have made any difference to the outcome of the Authority’s review.

Conclusion and disposition

84    The appellant has not demonstrated that the Authority made any error of a sort which vitiated the exercise of its review jurisdiction in his case. The Authority did not engage in a process of reasoning or fact-finding which was legally unreasonable. Nor did the Authority err in the manner in which it dealt with any new information which the appellant put before it. The Authority dealt with that information in the manner it was required to do so under s 473DD of the Act. Even if it did err in failing to consider whether any new information met the criteria in s 473DD, any such error has not been shown to be material and therefore jurisdictional in nature.

85    The appeal must accordingly be dismissed with costs.

Associate:

Dated:    27 July 2023