Federal Court of Australia
FGQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 944
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSEMENT AUTHORITY Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Leave is granted nunc pro tunc to file and serve the Further Amended Notice of Appeal.
2. Leave to rely upon the new ground in the Further Amended Notice of Appeal is refused.
3. The appeal is dismissed.
4. The appellant is to pay the first respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 The appellant is a citizen of Sri Lanka of Tamil Background. He arrived in Australia in September 2012 as an unauthorised maritime arrival. By letters dated 28 July 3016, 9 July 2017 and 8 September 2017, the Minister informed the appellant that he had lifted the statutory bar pursuant to s 46A of the Migration Act (1958) (Cth), which otherwise prevented the appellant from applying for a visa, and invited the appellant to apply for a Safe Haven Enterprise Visa (SHEV). On 22 September 2017, the appellant applied for a Safe Haven Enterprise Visa, claiming to fear harm from Sri Lankan authorities. A Safe Haven Enterprise Visa is a class of temporary protection visa, as provided for by s 35A of the Act. As such, it was necessary among other things for the appellant to satisfy the criteria for a protection visa in either s 36(2)(a) (the refugee criterion) or s 36(2)(aa) (the complementary protection criterion), as I shortly explain: see s 35A(6) of the Act.
2 On 25 June 2018, a Delegate of the First Respondent, the Minister for Immigration, Citizenship, and Multicultural Affairs, refused to grant the appellant a visa. That decision was automatically referred to the Immigration Assessment Authority for review. By a decision dated 11 September 2018, the Authority affirmed the decision not to grant the appellant a visa.
3 The appellant, who was then legally unrepresented, sought judicial review of the Authority’s decision in the (then) Federal Circuit Court of Australia. On 28 April 2020, the primary judge dismissed the application for judicial review: FGQ18 v Minister for Immigration & Anor [2020] FCCA 995.
4 On 7 May 2020, the appellant filed a Notice of Appeal from the decision of the primary judge. That notice of appeal, which was filed when the appellant did not have legal representation, did not identify any cognisable grounds of appeal.
5 The hearing of this appeal was amongst the cohort of matters which were delayed an allocation for hearing due to restrictions on in-person hearings during the Covid-19 pandemic. Following those delays, the appellant obtained legal representation.
6 On 20 April 2023, the appellant filed a proposed Amended Notice of Appeal, which substantially amended the initial Notice of Appeal. It sought to include one ground of appeal which raised an issue not agitated before the primary judge, namely, that “the IAA failed to consider s 473DC of the Migration Act to get further information”. Various particulars were given of the ground relating to the IAA’s “negative” “comment[s]” on aspects of the appellant’s claims to fear harm, as I explain in the course of addressing whether the ground of appeal has any merit.
7 On 14 July 2023, the appellant filed a proposed Further Amended Notice of Appeal, slightly altering the orders sought by the appellant but not altering the single new ground of appeal sought to be relied upon.
8 By written submissions dated 27 July 2023, the first respondent submits that the appellant ought not be granted leave to rely on the Amended Notice of Appeal, or the Further Amended Notice of Appeal on the basis that:
(1) the appellant requires leave to rely upon the new (and only) ground of appeal (Respondent’s Submissions [RS] at [13]); and
(2) as the ground lacks merit, the appellant ought not be granted leave to rely upon the ground (RS at [21]).
9 Accordingly, the Minister contends that the appeal should be dismissed with costs.
10 For the reasons set out below, leave should be granted to file and serve the Further Amended Notice of Appeal. However, leave to raise the new ground of appeal should be refused for the reason that it lacks any reasonable prospect of success. It follows that the appeal must be dismissed.
2. FACTUAL AND LEGSLATIVE BACKGROUND
2.1 Legislation and relevant principles
11 The Authority’s decision concerned the appellant’s claim for protection. It is helpful at the outset to outline the relevant provisions relating to protection claims, the principles concerning which are now well-settled, and were not in dispute between the parties. These principles were summarised by Perry J in DBE19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 779 as follows (at [6]-[13]):
The Migration Act 1958 (Cth) (the Act) provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter and remain in Australia. The Act provides for different classes of visas. One class of visa is a protection visa, the criteria for which are specified in s 36 of the Act.
A protection visa may be granted where the criteria in s 36(2)(a) are met. That provision provides that a “criterion for a protection visa is that the applicant for the visa is … a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee” (the refugee criterion).
In circumstances where a person is a national of another country, a person will be a “refugee” for the purposes of the Act if they are “outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”: s 5H(1)(a) of the Act.
The expression “well-founded fear of persecution” is defined in s 5J of the Act. That section relevantly provides that:
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
A determination of whether a (subjective) fear is (objectively) “well-founded” requires the Authority to assess what might occur in the future. A fear is “well-founded” when there is “a real and substantial basis for it” even though the chance of the fear eventuating is less than 50 per cent (often described as a “real chance”): Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Conversely, a fear of persecution is not well-founded “if it is merely assumed or if it is mere speculation”: ibid.
Section 36(2)(aa) provides an alternative criterion for the grant of a protection visa to a non-citizen where the Minister is not satisfied that the person is a refugee but is nonetheless satisfied that the person is entitled to protection under Australia’s international non-refoulement obligations (described as complementary protection), being a person:
…in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…
(the complementary protection criterion)
Section 36(2A) provides that a person will suffer “significant harm” if:
(a) the non-citizen will be arbitrarily deprived of his or her life;
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
A determination of whether there is a real risk for the purposes of the complementary protection criterion requires a consideration of whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at 551 [242]-[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at 557-558 [297] and Flick J at 565 [342] relevantly agreed). The level of risk of harm under the s 36(2)(aa) complementary protection criterion is therefore the same as the level of risk required under the s 36(2)(a) refugee criterion.
12 On 27 June 2018, the decision of the Minister to refuse the appellant a protection visa was automatically referred to the Authority for a review as a “fast track reviewable decision” under Part 7AA of the Act, the statutory basis for which I later explain.
13 On 11 September 2018, the Authority affirmed the decision not to grant the appellant a visa. In summary, the Authority accepted that the appellant may face some societal discrimination by virtue of his profile and circumstances as a whole (at [55]). The Authority also accepted that the appellant may be subject to some visits or monitoring from Sri Lankan authorities, and may face a potential arrest and penalty because of his departure from Sri Lanka. However, the Authority did not consider that this would amount to persecution (at [55]). The Authority therefore concluded that the appellant was not a refugee for the purposes of s 5H(1) of the Act. For similar reasons, the Authority determined that the appellant did not meet the requirements for complementary protection under s 36(2)(aa) of the Act: see also DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1 (at [27]) (the Court).
14 The Authority’s decision records that it had regard to the material given by the Secretary under s 473CB of the Act (at [2]; see below concerning the material able to be considered by the Authority). The Authority indicated that attempts were made to contact the appellant about the Delegate’s refusal of the visa, and about the referral of the matter to the Authority (at [3]). Whilst those communications were ‘returned to sender’, the Authority was “satisfied this [correspondence] was sent to the [appellant’s] nominated residential address”, and that he was “correctly notified by the department, and the IAA” (at [3]).
15 The Authority’s decision further records that it had “advised the [appellant] that it would proceed to make a decision on his case on the basis of the information sent to the IAA by the department, unless the IAA decided to consider new information” (at [4]). The Authority indicated that, following this correspondence, “no further information has been received” (at [4]). On that basis, the Authority proceeded to make a decision on the evidence before it. This procedural decision is significant to the appellant’s ground of appeal.
16 The Authority then turned to consider the appellant’s claims for protection (at [5]), based on the material provided to the Delegate. It is not necessary to repeat all the detail of those submissions. For present purposes and bearing in mind the need to minimise details which may identify the appellant, the appellant’s claims to fear harm from the authorities if returned to Sri Lanka included the following (at [5]).
He is a Tamil Catholic, whose father occasionally supported the Liberation Tigers of Tamil Eelam (LTTE).
In the mid-2000s, he was attending mass when a bomb exploded between his home and the building next door and killed a large number of Sri Lankan Army (SLA) officials;
The appellant claimed that his family was unable to return home for a week.
When the family returned to their home, a large number of uniformed officials subsequently surrounded the house, destroyed the property, threatened to kill the appellant’s mother, accused the appellant’s family of planting the bomb, and asked his mother to hand over her husband and the children.
The appellant and his family subsequently stopped living in their house, but occasionally returned to it to conduct repairs. Upon each return, the appellant found that the army had damaged the property. The appellant believed that the SLA had been watching him since the bomb blast.
His family moved back into the house about one and a half years after the bomb blast, but the appellant did not return.
He was told that the SLA was looking for him at school, and therefore he stopped attending school regularly.
The appellant believed that the army was watching and monitoring him throughout this period because they believed he gathered and passed on information to the LTTE.
In 2010, he was held by the SLA for two days after being identified by army officials at a checkpoint where the SLA tied him up naked, beat him and broke his leg.
After his release, the SLA continued to look for the appellant at school, which eventually caused the appellant to cease attending school altogether. The appellant moved around every couple of days to hide from the SLA. During the time after his release , the SLA “continued to harass his father about his whereabouts”.
While the appellant left the country in August 2012, the authorities continued to question his family about his return to Sri Lanka and said they will shoot him on sight if he returns.
17 In response to those claims, the Authority made various factual findings (at [6]-[25]). At a high level, the Authority’s reasons disclose concerns about the appellant’s credibility, finding his evidence “vague and inconsistent” and “exaggerated” (at [25]). The Authority did not accept several of the claims made by the appellant.
18 At risk of oversimplification, key findings by the Authority included the following.
(1) The appellant’s family provided only “low level assistance” to the LTTE, and the appellant himself was not “ever suspected by the authorities to be an LTTE member or supporter, or to otherwise be a security concern” (at [8] and [10]).
(2) It had “concerns” about the evidence of the bomb attack, given there was “no apparent independent evidence of it” (at [15]). The Authority “did not consider it plausible” that there would be no public reporting of such a “major incident” (at [15]) (this reasoning is challenged by particular 1(e) of the Amended Notice of Appeal).
(3) The appellant’s evidence that 200-250 army members subsequently surrounded the house or pretend to be LTTE members was not plausible (at [16]).
(4) It was implausible that the appellant or other members of his family would not have been intercepted by the authorities during the 18 month period following the bomb attack, had they been of any interest (at [17]).
(5) The appellant’s evidence of how he was identified at the checkpoint was “confused, and contradictory” (at [19]) (this reasoning is challenged by particular 1(b) of the Amended Notice of Appeal).
(6) Despite his claims to have been detained, tied up, beaten and had his leg broken, and that a month later the SLA came to the school looking for him leading to him going into hiding, there was no mention of the applicant facing any problems at school in a letter from the school’s Principal, provided by the applicant (at [20]).
(7) It did not accept the claims about the harassment of his father, given certain issues with the appellant’s claimed timeline (at [21]-[22]) (this reasoning is challenged by particular 1(a) of the Amended Notice of Appeal).
(8) The IAA had questions as to “why the [appellant] would have needed an official drivers licence” and why the appellant, who was actively avoiding the authorities, would have obtained an official document which would have resulted in a record of him having been issued a licence from a local issuing authority (at [24]) (this reasoning is challenged by particular 1(c) of the Amended Notice of Appeal.)
19 On this basis, and having regard to the appellant’s profile and country information (including, amongst others, the circumstances facing returnees in the community), the Authority was not satisfied that the appellant had a well-founded fear of persecution for the purposes of the refugee criterion. The Authority, in this regard, observed that the appellant may need to pay a fine if returned to Sri Lanka, but was “not satisfied the [appellant] could not pay a fine” (at [49]) (this reasoning is challenged by particular 1(d) of the Amended Notice of Appeal).
20 The Authority then turned to consider whether the appellant satisfied the criterion for complementary protection. In this regard, the Authority was not satisfied that the appellant would suffer “significant harm” on return. Specifically, the Tribunal found that (at [62]): “I have otherwise found the [appellant] would not face a real chance of harm on return. For the same reasons, I am not satisfied he faces a real risk of harm, including significant harm”. The Authority therefore affirmed the decision not to grant the appellant a protection visa.
2.3 The Federal Circuit Court’s Decision
21 The appellant, who was then legally unrepresented, sought judicial review of the Authority’s decision in the (then) Federal Circuit Court of Australia. The appellant raised three grounds of review, those being:
(1) Jurisdictional error.
(2) Bias based on conscious or unconscious prejudice by ignoring relevant materials.
(3) Identifying a wrong issue on a wrong question.
22 The appellant did not appear to advance these grounds before the primary judge by reference to written submissions, but did make oral submissions.
23 The primary judge rejected ground one, observing (correctly) that the bare assertion of a jurisdictional error is incapable of giving rise to any error (at [41]). The primary judge held that, on the face of the material, the Authority complied with its statutory obligations and the adverse findings by the Authority in relation to the appellant’s credibility were open to it: ibid.
24 The primary judge also rejected ground two, finding that no case of actual or apprehended bias was made out (at [47]). The primary judge observed that the appellant impugned the fact that the interview for the Safe Haven Enterprise Visa only lasted one and a half hours. However, the primary judge considered that this was not “conduct by reason of which a fair minded lay observer might reasonably apprehend that the Authority in the conduct of the view under pt 7AA of the Act might not bring an independent and impartial mind to the determination of a matter on its merits” (at [44]): see also Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31] (Gummow A-CJ, Hayne, Crennan and Bell JJ; Charisteas v Charisteas [2021] HCA 29; (2021) 95 ALJR 824 at [11] (the Court); Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [21] (Kiefel, Bell, Keane and Nettle JJ). The primary judge also held that the adverse findings by the Authority were not conduct by reason of which a reasonable lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits (at [45]).
25 Finally, the primary judge briefly rejected the third ground of appeal. The primary judge observed that the third ground was unparticularised, and identified no “wrong issue on a wrong question” (at [48]). The primary judge held that, on its face, the Authority’s reasoning correctly identified the relevant law and made adverse findings dispositive of the applicant’s claims that were open to it to make (at [48]).
26 The primary judge therefore dismissed the application with costs fixed in the amount of $5000.
27 As I have indicated, the appellant filed a notice of appeal on 8 May 2020. The notice of appeal stated the following:
Grounds of appeal
I still rely upon the Grounds before the Federal Circuit Court.
The Federal Circuit court failed to find that the IAA declined its jurisdiction to me.
1. I am the Appellant.
2. I lodge this FC Application myself.
The Federal Circuit Court erred when it found the Authorities’ decision is not affected by jurisdictional error.
28 By an Amended Notice of Appeal filed on 21 April 2021, as I have mentioned earlier, the appellant (who was legally represented by this time) sought to rely only upon a ground not raised before the primary judge. Specifically, by the new appeal ground, the appellant contended that the Authority fell into jurisdiction error in that it “failed to consider s 473DC of the Migration Act to get further information” in relation to the matters the subject of particulars (a) to (e) and that:
The above matters were specifically commented upon by the IAA in a negative manner contra to the Applicant’s claims, and affected the IAA decision to affirm the delegate’s decision not to Grant him a protection visa.
The IAA could have sought further clarification of them from the Appellant, but chose not to consider exercising its discretion to do so. Had the IAA considered getting new information it may have granted the Appellant a protection visa.
29 The appellant accepted that, as this was a new ground not raised before the primary judge, it is necessary for him to seek leave to rely on the ground. I will first outline the principles which govern the circumstances in which a Court will permit an appellant to rely upon a ground not raised below, before considering the application of those principles to the appellant’s new ground of appeal.
3.1 Principles governing the circumstances in which a Court will permit an appellant to rely upon a new ground not raised below
30 As the respondent observes, there is an extensive body of case law outlining the principles which govern when a Court will permit an appellant to rely upon a new ground on the appeal. Fundamentally, the question is “whether it is in the interests of justice to grant leave” to rely upon the new ground: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187 at [14] (Derrington J) and [110] (O’Bryan J); MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152 at [2] (Allsop CJ).
31 Various matters can and often do go to the question of whether it is in the interests of justice to grant leave: see Tohi at [13] (Derrington J). One “important consideration” is whether the ground has merit: Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; (2017) 258 FCR 1 at [33] (Gilmour and Mortimer JJ); Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2010] FCA 1120 at [43] (Banks-Smith J). The assessment of the merits should generally occur at a “reasonably impressionistic basis”: AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365 at [55] (Derrington J).
32 Without being exhaustive, other considerations which may be relevant include:
(1) whether the appellant has provided an adequate explanation for why the ground was not raised below: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [166] (Madwick J);
(2) the prejudice to the respondent in permitting the ground to be agitated: SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779; (2020) 169 ALD 579 at [136] (Allsop CJ); and
(3) the prejudice to the appellant if leave is not granted: Tohi at [13](5) (Derrington J).
3.2 Part 7AA and s 473DC of the Act and relevant principles
33 Part 7AA of the Act provides for the review by the Authority of a “fast track reviewable decision”. Although the Authority’s review is a de novo (i.e. fresh) consideration of the merits of a fast track reviewable decision, s 473DB(1) of the Act provides that, subject to Pt 7AA of the Act, the Authority must review a fast track reviewable decision “by considering the review material provided to the Authority” “without accepting or requesting new information” and “without interviewing the referred applicant”.
34 The exception to that general rule is contained in s 473DC of the Act, entitled “Getting new information”. Subsections (1) and (3) of that provision confers a power on the Authority to obtain new information in these terms:
(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 s 65; and
(b) the Authority considers may be relevant.
…
(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.
(Emphasis in underlining added.)
35 The use of the word “may” in sub-ss 473DC(1) and (3) makes it clear that the Authority has a discretion to get new information, including to invite a person to give evidence. Subsection (2) of that provision, in turn, makes clear that the Authority is under no obligation to obtain any new information. That provision provides:
(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.
36 Finally, s 473DD of the Act imposes certain restrictions on the Authority’s capacity to consider new information. That provision provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
(Emphasis added.)
37 The appellant’s case turns upon the exercise of the Authority’s discretion to get, or not get, new information about the appellant pursuant to s 473DC. The statutory scheme in which the discretion is located has a number of key elements which, drawing upon the respondent’s helpful submissions at [16], can be summarised as follows.
38 First, the “primary requirement” (as the appellant accepted) of Part 7AA of the Act dealing with fast track reviewable decisions is that the Authority reviews a decision referred to it “by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant”: M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [22] (Gageler, Keane and Nettle JJ), citing s 473DB(1) of the Act. The review material provided under s 473CB by the Department includes the statement of reasons by the primary decision-maker, material provided by the referred applicant to the primary decision-maker, and any other material which the Secretary considers relevant to the review.
39 Secondly, there are a number of exceptions to the primary rule, namely, ss 473DC, 473DD and 473DE. Relevantly, s 473DC confers a discretionary power on the Authority to “‘get’, in the sense of seek out, ‘new information’”: M174/2016 at [23] (Gageler, Keane and Nettle JJ). However, s 473DC(2) makes plain that the Authority is not under a general obligation or duty to seek out this new information. Furthermore, new information given or proposed to be given by the referred applicant must not be considered unless it meets the criteria in both sub-ss 473DD(a) and (b).
40 Thirdly, whilst s 473DC confers a discretionary power, it does not follow that the power is unconstrained. Rather, “[e]very statutory discretion, however broad, is constrained by law”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at 348 [29] (French CJ). Hence, it has been accepted that s 473DC must be exercised within the bounds of legal reasonableness: DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 at [35](3) (Griffiths and Steward JJ). It follows that there may therefore be circumstances where a failure to exercise the power in s 473DC of the Act is legally unreasonable: ibid.
41 Fourthly, the test for legal unreasonableness is “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] (Kiefel CJ), cited in DPI17 at [37] (Griffiths and Steward JJ). A decision not to exercise the power will be legally unreasonable if it is “lacking a rational foundation or an evident or intelligible justification, or [is] plainly unjust, arbitrary, capricious, or lacking in common sense”: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [51] (Thawley J), cited in DPI17 at [38] (Griffiths and Steward JJ). The mere failure to consider exercising the power is insufficient per se to give rise to jurisdictional error: DPI17 at [39] (Griffiths and Steward JJ).
42 Finally, the Authority is not required to interview an applicant merely because credibility is in issue: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [22]-[24] (Kiefel CJ, Bell, Gageler and Keane JJ).
3.3 Should leave should be granted to rely upon the ground not raised before the primary judge?
43 In support of its contention that leave should be granted to rely upon the new ground, the appellant submitted that:
he had an acceptable explanation as to why the ground was not raised below, namely, that he was impecunious, could not afford legal representation, and therefore was not in a position to raise the legal argument now sought to be advance on the appeal (relying upon the appellant’s affidavit dated 27 July 2023);
there was little prejudice to the respondent because the respondent had been afforded an opportunity to advance fully considered and developed submissions in relation to the issues raised by the appellant’s new ground; and
there would be significant prejudice to the appellant in refusing leave, because the judicial review application pertains to his application for a protection visa, which is a matter of considerable significance to the appellant.
44 The respondent accepted, as do I, the validity of each of these points. However, the respondent contends that leave to appeal should not be granted to rely upon the new ground because it lacks any apparent merit. I respectfully agree, for the following reasons.
45 First, the appellant’s Further Amended Notice of Appeal does not identify any legal basis for its contention that the Authority’s failure to consider s 473DC of the Act amounts to jurisdictional error. The Further Amended Notice of Appeal does not, for example, allege that any purported failure to consider s 473DC of the Act was legally unreasonable. Rather, the sole new ground of appeal merely states that:
The IAA failed to consider s 473DC of the Migration Act to get further information
…
The above matters [being particulars (a)-(e)] were specifically commented upon by the IAA in a negative manner contra to the [appellant’s] claims, and affected the IAA decision to affirm the delegate’s decision not to Grant him a protection visa.
The IAA could have sought further clarification of them from the Appellant, but chose not to consider exercising its discretion to do so. Had the IAA considered getting new information it may have granted the Appellant a protection visa.
The IAA’s failure to consider getting new information amounted to jurisdictional error.
46 To the extent that the appellant contends that there is a general duty to consider the exercise of the discretion under s 473DC to get new information, that proposition squarely conflicts with s 473DC(2) of the Act: see also DPI17 at [39] (Griffiths and Steward JJ). As the respondent submits, much of the appellant’s argument proceeds as if s 473DC displaces the general requirement for the Authority’s review to take place on the papers. The appellant’s contentions, if accepted, would require the Authority to engage in a wide-ranging inquiry into any new information which may have affected the Authority’s assessment of the credibility of his claims. For the reasons outlined, that argument proceeds from a misunderstanding of the text and purpose of the statutory scheme in Part 7AA of the Act, and does not raise an arguable ground of jurisdictional error. In this respect, I respectfully agree with, and consider apposite, the observations of Yates J in CMP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 634 at [78]:
The issue raised by the third question and the fourth question is not whether it was open to the Authority to seek further information, or whether it would have been reasonable for the Authority to do so. The question is whether it was legally unreasonable for the Authority not to seek the information in all the circumstances of the case bearing in mind the nature of its review function under Part 7AA of the Act. In other words, in not exercising the discretionary power under s 473DC(1) of the Act to seek that information, was the Authority acting unreasonably in the sense that, for example, its conduct lacked a rational foundation or an evident or intelligible justification, or was plainly unjust, arbitrary, capricious, or lacking in common sense?: CCQ17 at [51]. I am not persuaded that the Authority’s non-exercise of that power was of that character.
47 Secondly, much of the appellant’s case rests on the assumption that the Minister did not consider the exercise of the power under s 473DC of the Act. That argument appears to have been made merely because the Authority did not mention s 473DC in its reasons. I would not, however, be prepared to draw this inference. The mere failure to mention the exercise of a procedural power cannot, of itself, provide a sufficient basis on which to infer that the exercise of those powers was not considered. For example, in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29, Kiefel CJ, Bell, Gageler, Keane and Nettle JJ held (at [40]):
Given that the Authority was under no obligation to give reasons for its exercise or non-exercise of any procedural power, the mere failure of the Authority to mention the discretion conferred by s 473GB(3)(b) [of the Act] cannot support the drawing of an inference that the exercise of the discretion was not considered.
Those statements are equally apt to apply to the discretionary procedural power in s 473DC of the Act. As such, I do not consider that any arguable basis has been established on which to infer that the Authority did not consider the exercise of the power under s 473DC of the Act.
48 In this regard, the Authority’s decision indicates at least an awareness of the power under s 473DC. At [4], the Authority records that it would “proceed to make a decision on [the appellant’s] case on the basis of the information sent to the IAA by the department unless the IAA decided to consider new information” (emphasis added). As I have noted, the Authority’s power to consider new information is reposed solely in s 473DC. Based on its stated reasons, the Authority therefore appeared cognisant of, and considered, the possibility of obtaining new information under this provision. In those circumstances, it could not be inferred that the Minister did not consider the exercise of the power under s 473DC.
49 Thirdly, and in any event, none of the five particulars relied upon by the appellant disclose any arguable jurisdictional error.
50 Particular A impugns the Authority’s finding concerning the reliability of the appellant’s evidence about when the harassment and torture of his father commenced. At [22], the Authority states that, “in his written application the [appellant] said this [harassment] occurred after his release from detention” in 2010, whereas “in the SHEV interview he said it occurred in the one and a half years after the bomb blast, which would cover the period from [redacted] 2007 towards the end of 2008”. The Authority concluded that the appellant’s “evidence of the timing of these events … [was] confused and contradictory” and “inconsistent” (at [22]).
51 The appellant challenged these findings, and submitted that his accounts as to the timing of his father’s harassment could have been reconciled if the Authority had sought further clarification from him. In this regard, the appellant emphasised that, in the statement of claim before the Delegate, he had stated that “after I went into hiding, the Army continued to harass my father about my whereabouts” (emphasis added). The appellant submits that the Authority did not take cognisance of the words “continued to harass”, which were consistent with the harassment of his father having commenced before 2010.
52 This submission cannot, with respect, succeed. First, paragraph [5] of the Authority’s decision expressly refers to the appellant’s claim that “the army continued to harass his father about his whereabouts”. As such, it cannot be inferred that the Authority overlooked this aspect of his claims as stated in his original written application when finding that his account was “confused and contradictory” (at [22]).
53 In any event, as the respondent contends, credibility findings are quintessentially findings for the Authority which will ordinarily lie squarely within its jurisdiction. There may be circumstances where an error in the assessment of credibility will constitute a jurisdictional error: Maan v Minister for Immigration and Border Protection [2017] FCA 906 at [45] (Charlseworth J). An adverse finding of credit may give rise to a reasonable apprehension of bias: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 (at [31] (Flick J)). So too may an irrational or illogical credibility finding amount to jurisdictional error: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [40]–[44] (the Court). Yet the appellant makes no claim that the Authority’s adverse credit findings gave rise to a reasonable apprehension of bias or were legally unreasonable, such as by reason of lacking a “rational foundation or an evident or intelligent justification” or being “plainly unjust, arbitrary, capricious, or lacking in common sense”: DPI17 at [38] (Griffiths and Steward JJ). Particular A therefore does not raise any arguable jurisdictional error in the Authority’s decision.
54 Similar difficulties attend Particulars B to E of the ground of appeal. Particular B impugns the Authority’s finding that the appellant provided “confused, and contradictory” evidence about how he was identified at the checkpoint crossing (at [19]). The appellant suggests that this confusion could have been clarified through a further interview with the appellant. However, for similar reasons as those just outlined, this argument lacks any reasonable prospects of success. In particular, s 473DC of the Act does not impose an obligation on the Authority to undertake an interview merely because it proposes to make an adverse finding as to the appellant’s credit on a particular issue or otherwise: ABT17 at [24] (Kiefel CJ, Bell, Gageler and Keane JJ).
55 Particular C contends that the Authority failed to consider getting further details of why the appellant needed a Sri Lankan drivers licence and the context in which he obtained the licence, challenging the Authority’s finding that the appellant “has not provided any further details as to how he obtained this document” (at [24]). The Authority considered this issue in raising a concern as to “why the [appellant] would have needed an official drivers licence at that time”, particularly given the appellant’s claim that he was avoiding the Sri Lankan authorities at the time (at [24]). However, the purported error alleged by the appellant in this regard is merely that the Authority “could have easily cleared its concerns” if it had asked the appellant for further information. For the reasons just outlined, even if that is so, it would be insufficient to establish jurisdictional error. As the respondent submits, no reason is given as to what made the failure by the Authority to seek clarification of its concerns legally unreasonable.
56 Particular D challenges the Authority’s finding that “on the evidence I am not satisfied the [appellant] could not pay a fine” if he were returned to Sri Lanka (at [49]). Those findings were made in the context of findings that the appellant’s family were “wealthy” (at [39] at [41]). The appellant submits that “these concerns may have been capable of being answered by the Appellant if he had been asked”. Again, even if this is so, for the reasons outlined it cannot suffice to establish jurisdictional error. No reasons are given as to why this failure to make further inquiries of the appellant could be characterised as legally unreasonable. It bears repeating that s 473DC of the Act does not impose an obligation on the Authority to undertake an interview, merely because it proposes to make an adverse finding as to the appellant’s credit on a particular issue: ABT17 at [24] (Kiefel CJ, Bell, Gageler and Keane JJ).
57 Particular E challenges the Authority’s concerns about the appellant’s evidence of the bomb attack (at [15]). Specifically, it will be recalled that the Authority found that, if an incident of the magnitude of the bombing described by the appellant occurred, there would have been independent evidence of the event (at [15]). In this regard, the Authority found that there was no “apparent independent evidence” of the bomb attack (at [15]). The appellant contends that the Authority erred because it “did not appear to have undertaken any enquiries as to whether there was an incident”. He likewise argues that the Authority “ought to have sought clarification of this point”.
58 However, the appellant has not established a sufficient basis on which to infer that the Authority did not conduct any enquiries as to whether an incident occurred. The Authority’s reasons merely state that there was “no apparent independent evidence” of the major event, and that there was “no publicly available reporting on the incident”. Those statements do not disclose, one way or the other, whether the Authority itself undertook any independent research into this issue. Significantly, however, it is apparent that the Delegate undertook inquiries, given the statement in the Delegate’s reasons that:
It was put to the [appellant] at interview that no support country information was located in relation to the [bomb explosion] on [redacted] in 2007.
…
I have weighted this against the consideration that during this time, the Sri Lankan authorities maintained strict controls on the media and the reporting of such a bombing … could have been supressed, but overall I find it unlikely.
59 The footnote in the Delegate’s reasons to the first proposition explained “sources consulted include CISNET, Home Affairs Library, government and non-government reports, domestic and International media outlets and Internet searches”.
60 As such, irrespective of whether or not the Authority itself undertook any inquiries as to the existence of independent reports about the alleged bombing incident, it is apparent that the Delegate, whose decision was before the Authority, had researched the issue. This would suffice to provide a rational basis for the finding by the Authority as to the apparent absence of independent evidence of the event in question, even if the Authority did not conduct its own research.
61 In any event, the appellant fails to identify the basis of the Authority’s alleged obligation to undertake further inquiries as to the bombing incident. Nor has the appellant identified any basis on which to suggest that it was legally unreasonable for the Authority to have failed to do so. Accordingly, there is no arguable jurisdictional error made out by this particular.
62 Fourthly, the appellant, in oral submissions, contended that the Authority had failed to engage in an active intellectual manner with the material before it. That contention was not developed in oral submissions. Presumably, the reference to an active intellectual engagement with the material refers to the decision Tickner v Chapman [1995] FCA 987; (1995) 57 FCR 451, in which each of Black CJ, Burchett J and Kiefel J spoke of an “intellectual process” required by the statutory scheme at issue in that case (462 (Black CJ), 476 (Burchett J) and 495 (Kiefel J)). However, the Authority’s reasons did not indicate any apparent lack of active intellectual engagement with the material before it: see also DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 at [77]-[78] (Edelman J). To the contrary, the Authority clearly identified the appellant’s claims for protection, and addressed those claims in turn.
63 Finally, in written submissions, the respondent raised a materiality issue. Because the ground of appeal lacks any reasonable prospects of success, it is not necessary to consider that issue.
64 Given in particular that the Further Amended Notice of Appeal was filed after the appellant obtained legal representation and the absence of any prejudice to the Minister, I consider (as foreshadowed at the hearing) that the interests of justice are best served by granting leave nunc pro tunc to the appellant to file and serve the Further Amended Notice of Appeal. I note that the Minister in this regard appropriately focused his submissions on the merits of the new ground. However, for the reasons given above, leave to raise ground 1 of the Further Amended Notice of Appeal is refused for the reason that the ground of appeal lacks any merit. In short, ultimately the appellant seeks to invite the Court to engage in a review of the merits of his claims which the Court has no power to do. The question of whether or not the Court agrees with the Authority’s decision is not a basis on which the Court can set that decision: DBE19 at [30] (Perry J). The Court’s task is limited to determining the validity of the Authority’s decision. Yet, no error arguably capable of establishing a jurisdictional error is raised by the ground of appeal.
65 It follows that the appeal must be dismissed with costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry. |
