Federal Court of Australia

BEP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1388

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is changed to the Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The appellant is a citizen of Sri Lanka. On 11 April 2016, the appellant applied for a Temporary Protection (subclass 785) visa.

2    On 14 September 2016, a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, made a decision refusing to grant the appellant a protection visa. The delegate’s decision was affirmed by the Immigration Assessment Authority (IAA) on 13 March 2019.

3    By a notice of appeal filed on 9 February 2021, the appellant appeals from a decision of the (then) Federal Circuit Court (FCC) dismissing his application for judicial review of the IAA’s decision. He appeared before the FCC and on the appeal without legal representation and with the assistance of an interpreter.

4    For the reasons set out below, the appeal must be dismissed.

2.    THE EVIDENCE BEFORE THE COURT

5    On 5 November 2023, the appellant emailed the Court attaching an affidavit affirmed on the same date. The affidavit included a request for an adjournment of the hearing to enable the appellant to find a pro bono barrister.

6    The affidavit also annexed a letter from a solicitor at AUM Legal, Mr Ganasan Arujunan, dated 5 November 2023 giving him pro bono legal advice. Before receiving the advice, I confirmed with the appellant that the advice had been translated for him and that he was aware of its contents. I also explained that, subject to him waiving privilege, the advice was subject to legal professional privilege as a consequence of which it was confidential, and I explained what was meant by legal professional privilege. Counsel for the Minister helpfully also drew the appellant’s attention to, and briefly explained, the relevant provisions of the Evidence Act 1995 (Cth) with respect to client legal privilege. After these matters had been explained to him, the appellant confirmed that he wished to waive privilege in the legal advice and rely upon it in support of his appeal.

7    The advice was based on a transcript of the Safe Haven Enterprise Visa (SHEV) interview of the appellant conducted by an officer of the Department of Immigration and Border Protection on 12 September 2016. That transcript had been prepared on 30 October 2023 from a sound recording by an administrative clerk apparently at an AUM Legal lawyer’s instruction. It was not in issue that the sound recording of this interview was before the IAA. Nor was it in issue that the transcript (which was prepared after the IAA’s and FCC’s decisions) was not before either the IAA or the FCC.

8    The advice and the affidavit by the administrative clerk annexing the transcript were annexed to an affidavit of the appellant affirmed on 5 November 2023. At the hearing, the Minister did not oppose receipt of this evidence in support of the application for an adjournment. While the Minister initially opposed receipt of the appellant’s affidavit on the appeal on the basis that it was fresh evidence for the purposes of s 27 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the Minister ultimately did not oppose the affidavit being relied upon in evidence (i.e. read) (including its annexures) on the appeal. As such, the affidavit was received as read both on the application for an adjournment and on the appeal.

3.    THE APPELLANT’S REQUEST FOR AN ADJOURNMENT

9    In relation to the adjournment request made on 5 November 2023, on 6 November 2023, the Court emailed the parties stating that:

Please be advised that her Honour will hear any adjournment application at the hearing, this Wednesday 8 November at 10:15am AWST. Parties should note that, if the adjournment is not granted, her Honour will proceed immediately to hear submissions on the merits of the appeal.

The attached affidavit has been accepted for filing without Annexure TG1. Her Honour has not looked at this annexure, as it is a copy of legal advice, and therefore subject to legal professional privilege (that is, the annexure contains advice which would normally remain confidential, because it contains advice from a legal professional). The question of whether the appellant wishes to waive his rights with respect to Annexure TG1 will be addressed at the hearing, if pressed.

Finally, the Court notes that the appellant emailed an unsealed copy of the affidavit and annexure to the Minister’s legal representatives, but assumes that the legal representatives for the Minister have also not looked at the legal advice, and will not do so pending consideration of this matter.

10    The appellant submitted that he was looking for a lawyer but could not get one. The Minister did not require the appellant to give evidence of these matters but effectively assumed the correctness of these statements. Nonetheless, the Minister opposed the application for an adjournment.

11    I dismissed the application for an adjournment and, while I gave a broad indication of my reasons at the hearing, I stated that I would give my reasons in my decision on the substantive appeal.

12    First, the appellant has had ample time within which to seek legal advice and no explanation had been given as to why he had waited apparently until shortly before the hearing of the appeal to seek legal advice. In this regard, the appellant wrote seeking an adjournment on Friday 5 November 2023 only a short time before the appeal was listed for hearing on Wednesday 8 November 2023. However, the notice of appeal had been filed on 9 February 2021 (2 years and 9 months earlier). The appellant had also been notified of the listing of the appeal on 21 September 2023 and served with Minister’s outline of submissions on 10 October 2023.

13    Secondly, there is no evidence to suggest that if given more time, it could reasonably be expected that the appellant would be successful in obtaining pro bono legal representation by a barrister, even with the assistance apparently offered to him by the solicitor who had given him the pro bono legal advice. Nor did the appellant submit that he would be able to do so within two months, as suggested in the letter from the pro bono solicitor.

14    Thirdly, as I held in Simjanovska v Department of Human Services [2019] FCA 499 at [16], “the Court’s duty is not only to afford fairness to an unrepresented litigant but also to the other parties… and the obligation of the Court and the parties under ss 37N and 37M” of the FCA Act. Relevantly, s 37N imposes an obligation on the parties to civil proceedings to conduct proceedings in a way that is consistent with the overarching purpose of the civil practice and procedure provisions set out in s 37M, namely: “to facilitate the just resolution of disputes … as quickly, inexpensively and efficiently as possible”. That overriding purpose includes the following objectives:

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court's overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

15    Given the circumstances which I have outlined above, and that the appellant had been specifically advised that the hearing would proceed if his application for an adjournment was refused, in my view it was not in the interests of justice to grant the adjournment.

4.    BACKGROUND

16    The background is non-‍contentious and may be summarised as follows.

17    On 11 April 2016, the appellant applied for the visa. The appellant’s claims to fear harm from the Sri Lankan government were based on him being a Tamil who lived in an area controlled by the LTTE during the conflict. Those claims were summarised by the IAA at [14] as follows:

•    The applicant is a Tamil male from the district of [redacted], Northern Province;

•    In 2006, he lived in an area controlled by the LTTE (Liberation Tigers of Tamil Eelam). Between August and October shells fell within 500 metres of his family home and destroyed some crops;

•    Between October 2006 and mid-‍2009, the applicant and his family were displaced due to the conflict;

•    In May 2009, following the end of the conflict, the applicant and his family stayed in a camp for internally displaced persons for six months before returning to their family home in [redacted];

•    On return to [redacted], the applicant discovered that the family home had been destroyed and that the LTTE had built bunkers on the land. The LTTE had been living in the family home. When his family discovered boxes of undetonated bombs, shells and magazines on the land they contacted the army who came and collected the boxes;

•    In 2011, the army came to the applicant’s property each month for about a year. Because they had found weapons on the land, they believed the applicant had more information about weapons, jewellery or money hidden in the area. He denied knowledge of these things;

•    In [redacted] 2012, the applicant was taken to an army camp and interrogated about the location of weapons, jewellery, and money. He was hung up-‍side-‍down and beaten to the point where he lost consciousness. After being at the camp for three hours, he was driven back to his house. He was told not to tell anyone what had happened. He was also given a telephone number that he could contact if he came to know any information about weapons, jewellery, or money;

•    During the next month, the applicant was too scared to stay at home so he slept at his mother’s house or his sister’s house and only visited his family during the day. When not at home, the army came and questioned his neighbours and family about him. On one occasion, the army threatened to kill his wife and children if he did not return;

•    About two months later, the applicant rented a house in [redacted], enrolled his children in school, and made plans to leave Sri Lanka. Once his children were settled and travel arrangements made, he left the country;

•    If returned to Sri Lanka, the applicant fears he will be interrogated and killed. The Sri Lankan government believes he is in the LTTE because he lived in an area controlled by the LTTE and because the LTTE lived in his house.

18    On 14 September 2016, the delegate refused to grant the appellant the visa.

19    The appellant’s matter was referred to the IAA on 15 September 2016 and the appellant was advised by the IAA of the referral on 16 September 2016. In turn, on 29 September 2016, the appellant provided the IAA with new information. The previous IAA affirmed the delegate’s decision on 8 March 2017.

20    The appellant applied for judicial review of the previous IAA’s decision on 21 March 2017. On 12 February 2019, the FCC, by consent, remitted the matter to the IAA for reconsideration in circumstances where the Minister conceded that the previous IAA had misapplied s 473DD(a) of the Migration Act 1958 (Cth).

21    On 13 March 2019, the IAA affirmed the decision not to grant the applicant the visa. The primary judge dismissed the appellant’s application for judicial review of this decision by the IAA.

5.    DISPOSITION OF THE APPEAL

5.1    The ground of appeal

22    The notice of appeal pleads simply and without particulars that (sic):

The Primary Judge didn’t adequately examine the evidence that was placed and didn’t exercise the Courts proper Jurisdiction.

23    As such, no specific errors by the primary judge are alleged. This in itself would suffice to provide a basis for dismissing the appeal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J); NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]. That notwithstanding, I have considered whether there is any error apparent from the primary judge’s reasons for dismissing the judicial review application. This accords with the approach appropriately adopted by the Minister in his written submissions.

5.2    Did the primary judge err in rejecting the grounds of judicial review pleaded?

24    There were three grounds of judicial review identified by the appellant in his application for judicial review, namely:

(1)    Jurisdictional error.

(2)    Bias based on conscious or unconscious prejudice by ignoring relevant materials.

(3)    Identifying a wrong issue on a wrong question.

25    Despite the unparticularised assertion in ground one, the primary judge reviewed the IAA’s decision for different types of jurisdictional error. His Honour found that the IAA had acted in accordance with its procedural fairness obligations, considered the appellant’s claims, had all the s 473CB materials before it and was not unreasonable in its findings: at [59].

26    In relation to the bias component of ground two, the appellant submitted to the primary judge that the IAA was biased because the IAA had before it a bio-‍data arrival interview of an unrelated third party: at [64]–‍[67]. The primary judge accepted this irrelevant material was before the IAA: at [69]. However, the primary judge found that there was no reason to believe that the IAA was consciously or unconsciously biased as a result of the document’s inclusion in the review materials because the IAA acknowledged that the document was irrelevant to the review and there was nothing in the document which was prejudicial: at [70]–‍[75]. I can see no error in the primary judge’s reasoning.

27    In relation to the second component of ground two—whether the IAA ignored relevant materials—the primary judge found that, while it was difficult to determine the appellant’s contention without particulars, the IAA took into account each of the appellant’s claims and extensively referred to the material that the appellant had provided: at [79]–‍[80]. To the extent that the ground may be referring to letters from a Member of Parliament and an Attorney-‍at-‍Law, the primary judge correctly found that, because the IAA found that those documents did not satisfy the criteria in s 473DD of the Migration Act, those documents were not “relevant materials” and the IAA was statutorily barred from considering them: at [81].

28    In relation to ground three, the primary judge correctly found that the IAA understood the legislative test to be applied, that the appellant did not satisfy the criterion for the visa and provided an intelligible justification for so finding: at [84]–‍[89].

29    In short, there is no error apparent in the primary judge’s comprehensive and careful reasons for dismissing the pleaded grounds of judicial review.

5.3    Did the primary judge err in his consideration of whether the IAA had correctly approached the application of s 473DD of the Migration Act

30    The Minister submitted that the only potential error could lie in the question of whether the primary judge erred in finding that there was no error in the IAA’s consideration of the criteria under s 473DD with respect to the new information provided by the appellant. The Minister’s further submitted that the IAA considered the application of that section in accordance with the High Court’s approach in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494.

31    In AUS17, the High Court confirmed that paras (a) and (b) of s 473DD were cumulative, but in addition the IAA must consider both parts of s 473DD(b) and not just deal with the matter by reference to s 473DD(a) (at [10]–‍[11]):

Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstances that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).

Logic and policy therefore demand that the Authority 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).

32    As the primary judge identified at [99], there were four pieces of “new information” before the IAA:

(1)    an undated Torture and Trauma Assessment Report;

(2)    an undated letter from a Sri Lankan Member of Parliament;

(3)    a letter dated 1 December 2012 from a Sri Lankan Attorney-‍at-‍Law; and

(4)    an untranslated letter from an office in Sri Lanka dated 10 July 1998.

33    There was no error in the primary judge’s findings that the IAA correctly applied s 473DD in relation to the Torture and Trauma Assessment Report and, even if there was an error, it could not have been material because the IAA found the material satisfied s 473DD and considered the information: at [101]–‍[105].

34    In relation to the letters from the Sri Lankan Member of Parliament and Attorney-‍at-‍Law, I agree with the primary judge that there was no error in the IAA’s approach to s 473DD: at [106]–‍[112]. The IAA was not satisfied that the letters could not have been provided to the Minister because one of them related to events pre-dating the delegate’s decision and the other letter itself pre-dated the delegate’s decision, and the appellant had not provided any explanation why these letters could not have been provided to the Minister. The IAA also considered whether the letters were “credible, in the sense of capable of being believed” and referred to a number of inconsistencies which meant that this was not the case. The IAA, therefore, found that neither ss 473DD(b)(i) and (ii) were met and. in those circumstances it was unnecessary for it to consider s 473DD(a).

35    In relation to the untranslated letter, the primary judge found that the IAA implicitly found that the letter did not meet s 473DD(b) and no error arose from the IAA’s approach to the issue: at [113]–[130]. This was because in respect of s 473DD(b)(i), the IAA found that the letter pre-dated the delegate’s decision and the appellant had not provided an explanation for why the letter could not have been provided to the Minister. As for s 473DD(b)(ii), the letter was untranslated, the appellant had not provided an explanation of its relevance and the appellant had not advanced any claims in respect of events that occurred prior to 1998. Even if there was an error in relation to the IAA’s consideration of this letter, the primary judge found that any such error would not have been material: at [131]–[133]. I do not consider that the primary judge erred in this consideration.

5.4    The further errors alleged by reference to the new evidence

36    In addition, while the appellant did not file written submissions in advance of the hearing, he relied upon the advice described at [6] above.

37    Based upon the transcript of the SHEV interview, Mr Arujunan advised as follows.

(1)    The IAA had erred in finding that the Member of Parliament and the Attorney-‍at-‍law’s letters were inconsistent with the evidence which the appellant gave at the SHEV interview that he had left [redacted] two or three months after his arrest in 2012;

(2)    While the IAA found at [28] that the appellant had stated in his statement that he had never told anyone about being tortured in 2012, his statement could also be interpreted to mean that he did not tell anyone of the torture immediately after his release. However, the IAA neither interviewed the appellant to clarify this doubt or gave him the benefit of the doubt.

(3)    In finding that if it were true that the appellant’s family had been threatened with death in August 2012, the IAA considered that the appellant would have mentioned it at some point during the protection visa process. However, that finding overlooked the fact that the appellant had in fact mentioned it at [29] of his statement.

38    The advice further advised that as a result, the IAA ignored relevant material or made factual mistakes when assessing the Member of Parliament and the Attorney-‍at-‍Law’s letters under s 473DD and these errors were material because they deprived the appellant of a possible successful outcome.

39    The Minister contended that in fact the IAA had not made any of the errors advised by the solicitor but that, in any event, even if the “errors” were made, they were of a factual nature and did not establish jurisdictional error.

40    The latter proposition is plainly correct. The first and third errors were purely factual, while the second alleged error went no higher than to allege that the statement in question by the appellant was ambiguous.

41    As to the second alleged error, there was no obligation upon the IAA to clarify the relevant allegation in the appellant’s statement. The IAA was entitled to make findings based upon its interpretation of the statement. In this regard, s 473DC(1) of the Migration Act, entitled “Getting new information”, confers a power on the IAA to obtain new information which was not before the Minister’s delegate and which the IAA considers may be relevant. Subsection (3) makes it clear that that power extends to the discretion to invite a person to give new information at an interview or in writing. However, it is clear from sub-‍s (2), that the IAA is under no obligation or “duty to get, request or accept, any new information”.

42    As to the first and third errors, with respect these alleged errors are based upon a misunderstanding of the limited nature of the Court’s jurisdiction with respect to administrative review of decisions such as that made by the IAA. The jurisdiction of the FCC was confined to deciding whether the IAA’s decision was made lawfully under the Migration Act. This Court in turn must decide whether the FCC wrongly held that there was no jurisdictional error, that is, that the IAA did not make a serious and material legal mistake (to use lay terms). The IAA would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant’s protection visa application was required to be assessed, if it failed to consider a substantial claim made by the appellant, or if it misapplied the criteria for exercising the discretion to receive new information under s 473DD: see, generally, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (the Court).

43    However, neither this Court nor the FCC has jurisdiction to grant the appellant a visa, to consider whether the appellant meets the criteria for the grant of a protection visa, to decide whether the IAA should receive new information, or to correct mistaken findings of fact made by the IAA: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 73 ALD 1 at [114] (Kirby J). Yet, the first and third alleged errors rise no higher than factual errors which it was within the jurisdiction of the IAA to make. The same conclusion applies with respect the second alleged error to the extent that the appellant contends that the relevant passage in his statement was wrongly construed by the IAA.

44    In these circumstances it is unnecessary to determine whether any of the criticisms of the IAA’s reasons made by the solicitor were correct.

6.    CONCLUSION

45    For these reasons, the appeal should be dismissed with costs as agreed or assessed.

Associate:

Dated:    10 November 2023