Federal Court of Australia

ANW19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1471

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal is dismissed.

3.    The appellant must pay the first respondent's costs of the appeal fixed in the amount of $6,500.

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

REASONS FOR JUDGMENT

(edited from the transcript)

JACKSON J:

1    The appellant, ANW19, is a 39-year-old Sri Lankan citizen who is ethnically Tamil. He arrived in Australia on 6 September 2012 as an unauthorised maritime arrival. On 1 September 2016, he applied for a protection visa. He claimed to fear harm because of his Tamil ethnicity and his and his brother R's imputed connections with the Liberation Tigers of Tamil Eelam (LTTE). On 3 August 2018, a delegate of the first respondent, the Minister, refused to grant the appellant the visa because the delegate was not satisfied that he was a person to whom Australia owes protection obligations under s 36(2) of the Migration Act 1958 (Cth).

2    The decision was referred to the Immigration Assessment Authority for review and on 25 January 2019, the Authority affirmed the delegate's decision. On 3 September 2020, a judge of the Federal Circuit Court (as it then was) dismissed the appellant's application for judicial review of the Authority's decision.

3    On 17 September 2020 the appellant filed a notice of appeal in this Court. He was unrepresented at that time. But one week before the hearing, he became legally represented and filed an amended notice of appeal. I heard full argument on the basis that I would determine the question of leave to amend as part of these reasons for judgment.

4    The grounds of review in the Federal Circuit Court asserted that the Authority erred in deciding not to accept certain documents as new information under s 473DD of the Migration Act. The proposed ground of appeal in this Court asserts that the primary judge erred in failing to find in favour of the arguments put below, although in this Court the arguments are not put on precisely the same basis as they were put before the primary judge.

The delegate's decision

5    The appellant's claims to be entitled to protection in Australia were in a statement accompanying his application. The primary judge summarised the relevant aspects of the claim as follows (primary judgment (PJ) at [4], footnotes removed):

(a)    he was forced to work with the LTTE from 2003-2004 (as an administrative assistant) and 2005-2006 (as a tea maker). His brother, R, worked for the LTTE as a video editor and photographer from 2003-2006. Due to this, R was targeted by the CID [Criminal Investigation Department] and paramilitary groups;

(b)    in 2006, the CID attempted to take the applicant from his home but his mother and sister convinced them not to. The applicant feared for his life and departed Sri Lanka. The applicant returned in 2009;

(c)    his brother R had been held by the CID in a rehabilitation centre, but was released. In August 2011, the CID visited the applicant's home looking for R. The CID required the applicant to attend their office, which he did. He was interrogated about the LTTE, beaten and threatened. The applicant did not return home and instead went into hiding, as did his brother R. The CID visited the family home looking for the applicant and R and threatened to kill them;

(d)    the CID later found the applicant, took him to an unknown location and threatened and tortured him. The CID's visits to the family home continued. The applicant and R decided to flee Sri Lanka, and did so in August 2012;

(e)    in October 2012, the applicant's sister, K, received a phone call in which threats to kill the applicant and R were made unless they presented themselves to the CID.

6    The primary judge added that the appellant claimed to fear harm because of his Tamil ethnicity, his and R's work for the LTTE, for being perceived as supporting the LTTE and being against the Sri Lankan government, and for being a failed asylum seeker.

7    In the reasons for refusing the protection visa, the delegate accepted that the appellant was working for the LTTE from 2003 until 2004 as an administration assistant, and again from 2005 to 2006 as a tea maker. The delegate also accepted that the appellant's brother, R, worked for the LTTE. However, the delegate did not accept many other aspects of the appellant's claims, and on the basis of country information about developments in Sri Lanka since the appellant's departure, the delegate was not satisfied that the appellant was a person in respect of whom Australia has protection obligations outlined in s 36(2)(a) of the Migration Act. For similar reasons the delegate found that the appellant did not meet the complementary protection criterion under s 36(2)(aa).

The Authority's decision

8    The delegate's decision was a fast track reviewable decision within the meaning of the Migration Act and so was reviewed by the Authority. The relevant constraints on the Authority's power to consider new information were in s 473DD of the Migration Act, which provides as follows:

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.

9    The Authority described the new information received from the appellant which is the subject of this appeal. It consisted of a letter from the appellant, and new information received by the Authority from R. The information provided by R was in support of his own application and included a statement (in which R claimed to have been an LTTE cadre), a submission prepared by the Refugee Advice and Casework Service (RACS), and photographs of R wearing LTTE uniform. R also provided a short letter to the Authority in the appellant's case, asking that the material be taken into account.

10    The letter from the appellant related to the new information provided by R, and the Authority described it, accurately and completely, as follows (para 7):

The letter from the applicant states he was told his brother sent his [R's] updated statement and submission to his IAA file. He read a copy of his [R's] statement and submissions and agrees with them. He was afraid in the past that his brother would be detained in an Australian immigration detention centre for a long period if he revealed he was LTTE. He heard that Tamils who disclosed they were members of the LTTE were detained in Australian immigration detention centres for years. He knows about R's profile. He has seen the photograph and identified his brother wearing the uniform. R decided to tell himself that he is an LTTE cadre as his case was refused and he would be sent back and harmed in Sri Lanka.

11    The Authority then considered this new information as follows (para 8):

The applicant and R have separate applications for protection however, their claims are inter-related. The applicant previously claimed R worked for the LTTE as a video editor and photographer, but he claimed R was not LTTE. While I note the applicant's explanation for not giving this new information sooner, I am not satisfied the applicant could not have given it before the delegate made the decision. The applicant was specifically asked about his brother's role in the LTTE during the TPV interview, and he did not give this information. The applicant was assisted in making his claims for protection by solicitors, he was advised not to provide false information, and was given ample opportunity in his TPV interview on 13 July 2018 to raise any new claims and to discuss his claims for protection. The new information from the applicant himself is brief and does not provide significant corroborative evidence, it refers to evidence from R provided to the IAA on his behalf about him being an LTTE cadre. The fact the applicant did not raise the new information about his brother R and the photograph of his brother wearing the uniform before the decision was made, and when he was questioned about his brother and his role in the LTTE by the delegate, calls into question the credibility of the new information.

12    The Authority then decided it would not consider the new information (para 9):

Given the applicant previously claimed his brother R worked for the LTTE as a video editor, doing acting and voice dubbing, and was detained at the end of the war for rehabilitation and released in July 2011, I am not satisfied the new claim that R was an LTTE cadre and that he has seen the photograph and identified his brother wearing the uniform is significant, or credible. I am not satisfied there are exceptional circumstances to justify considering this new information from the applicant and on behalf of the applicant. I am not satisfied that s.473DD(a) is met.

13    The Authority proceeded to summarise the appellant's claims for protection, which have been set out above at [5].

The primary judge's decision

14    In the Federal Circuit Court, the appellant relied on four grounds in his amended application for judicial review, but in the end only ground 1 and ground 4 were pressed. It is only necessary to refer to ground 1, because that is the sole basis on which the appellant claims in this Court that the primary judge fell into error. It is as follows:

Ground 1: The IAA erred in finding that 'I am not satisfied the applicant could not have given it before the delegate made the decision' [8]

Particulars

There was no material before the IAA to suggest either document could have been provided before the delegate made the decision. The evidence all pointed the other way. Accordingly the IAA's finding [8] cannot be correct, is unreasonable, and/or based on no evidence.

Paragraphs 6 - 8

15    The primary judge described the new information as the letter, described above, and the new information from R. His Honour noted that the new information from R consisted of a letter (PJ [20], footnotes removed):

… addressed to 'Dear Honorable Reviewer' and is undated, along with a one page statement dated 21 September and a 10 page RACS submission dated 20 September. The 10 page submission includes three photographs, two of which show the applicant [that is, R] in LTTE uniform along with the leader of the LTTE.

16    The appellant submitted before the primary judge that it could not be concluded that he could have given the photographs to the delegate as, while he did know about his brother's profile, this was not the same thing as saying he could have provided the photographs to the delegate. So, the appellant submitted, there was no basis for the Authority not to be satisfied that the appellant could not have given the photographs to the delegate. This, he says, made the decision unreasonable and therefore the Authority had made a jurisdictional error. The appellant submitted that the Authority thus failed to consider the photographs when considering whether s 473DD(b)(i) applied, and it failed to consider them when deciding whether there were exceptional circumstances justifying consideration of the photographs.

17    In relation to ground 1, the primary judge held that no error by the Authority had been established, and that the ground simply sought merits review. His Honour considered that the material was plainly 'new information' as defined in the Migration Act, because none of it was before the delegate at the time of the decision. The primary judge noted that the appellant had been specifically asked about R's role during the TPV interview and had not said anything. The primary judge also considered that the appellant was, at that time, assisted by solicitors, advised not to provide false information, and was given the opportunity in the interview to raise new claims. As such, the primary judge concluded that 'there is nothing erroneous about the Authority's non-satisfaction, and a rational and logical Authority could also have not been so satisfied' (at PJ [43], emphasis in original).

18    Of the suggestion in the ground that the evidence 'all pointed the other way', the primary judge said that was without substance and simply invited merits review.

19    The appellant also alleged that it could not be concluded he could have given the photographs to the delegate before the delegate made the decision. Of this, the primary judge said (at [44]-[45]):

… This, too, ultimately seeks merits review of the Authority's finding. It is for the applicant to advance an explanation for why the 'new information' should be taken into account, so as to 'satisfy' the Authority of the matters in s 473DD, including as to why the 'new information' was not provided earlier. Here, as noted above, the Authority plainly did address the explanation that was proffered, but was not satisfied by it. Notably, the applicant did not claim, for example, that he could not have given the 'new information' (including the photographs) to the delegate at all because he simply did not know about it or because he did not have access to parts of it (eg. the photographs).

The suggestion that the Authority failed to consider the photographs when making its s.473DD assessment is plainly untenable. They are expressly referred to in each of [7], [8] and [9] of its reasons.

20    The primary judge also found that there was no realistic possibility that the Authority's decision could have been different had the new information been taken into account, so if there was any error, it was not material.

21    The primary judge thus found the appellant had failed to establish any jurisdictional error and dismissed the application.

22    In the appeal to this Court, the question of whether leave will be granted to rely on the amended ground of appeal necessarily depends on whether there is any merit in the amended ground. That is, essentially, the basis on which the parties argued the appeal in this Court.

The appellant's case on appeal

23    There is one proposed new ground of appeal which is as follows (appeal book references removed):

1.    The Lower Court erred in relation to Ground 1 before the lower Court when:

a.    it did not find the IAA erred when it stated 'I am not satisfied the applicant could not have given it before the delegate made the decision. [8]',

b.    it found no error by the Authority is established and ground 1 simply seeks merits review (see [40], [43], [44]);

c.    it found the Authority did not err in apply S 473DD (see [46]) or that any such error would not be material in any event (see [47]);

d.    it found the contention 'the evidence all pointed the other way' is without any substance [43];

e.    it found the Applicant failed to establish the decision of the Authority is affected by any jurisdictional error and dismissed the ground [50].

24    Following that ground are 18 'particulars' relating to it. They mostly summarise the reasoning of the Authority, but it is possible to make out contentions of error at xii and xiii as follows (emphasis in original):

Rather than providing a logical basis for not being satisfied the applicant could not have given (the new information) before the delegate made the decision, the explanations by R and the Applicant are consistent and explain why the Applicant did not disclose these matters previously. The explanations also explain why the applicant could not reveal R's background or produce the photographs earlier. Accordingly, the criticism by the IAA is invalid and undermines the basis for the IAA not being satisfied. The IAA had no basis to not be so satisfied, such that its non satisfaction was unreasonable and illogical amounting to jurisdictional error. The explanations by R and the Applicant satisfy 473DD (b)(i).

Further, the IAA's finding there were no exceptional circumstances under S 473DD (a) did not take into account the finding which it should have made under S 473DD (b)(i), such that this finding was invalid and based upon the incorrect finding of s 473DD (b)(i). The above errors meant the IAA findings were unreasonable, irrational and illogical, such that the IAA committed jurisdictional error.

25    The appellant also alleges that the Authority's finding that there were no exceptional circumstances under s 473DD(a) did not take into account the finding which it should have made under s 473DD(b)(i), such that the former finding was invalid and based on the incorrect finding under s 473DD(b)(i). This, the appellant alleges, meant the Authority's findings were unreasonable, irrational and illogical, such that the Authority committed jurisdictional error.

26    The appellant also challenges the primary judge's finding that the failure to take the new information into account was not material.

27    In oral submissions, counsel for the appellant continued to put his client's case on the basis that it was unreasonable, illogical or irrational for the Authority to have failed to have been satisfied that the appellant could not have provided the information to the delegate. The primary judge is said to have erred in failing to accept an argument to that effect.

28    In oral submissions, counsel for the appellant divided his client's case into what he described as two aspects. The first aspect was based on a contention that there was no information before the Authority which indicated when the appellant either became aware of his brother's profile in the LTTE, or came into the possession of the photographs which are said to show his brother in LTTE uniform and receiving an award from a person said to be a leader of the LTTE. The second aspect of the appeal was a contention that even if the Authority was entitled to conclude that the appellant was either aware of his brother's profile or had the photographs at the time that he was putting material to the delegate, the Authority, nevertheless, should have been satisfied that the material 'could not have been, provided to the Minister before the Minister made the decision under section 65' (s 473DD(b)(i)), because that does not require the Authority to be satisfied, as a matter of absolute or physical necessity, that the material could not have been provided. The appellant submitted that the explanation that was given by the appellant and his brother as to why the material had not been provided would, if accepted, have satisfied that criterion in s 473DD(b)(i).

29    In written submissions, which I take to go to the first aspect of the appeal, the appellant submits that the photographs are a separate consistent piece of new information and that there was no material before the Authority to determine when the appellant obtained them or when the appellant became aware of R's profile. The appellant goes on to say that the Authority was informed by him that R was 'an LTTE', not 'a cadre of the LTTE', as the photographs are said to depict. So, the Authority had no proper basis to conclude it was not satisfied the appellant could not have given the new information to the delegate.

30    The appellant goes on to submit that the errors committed by the Authority in its consideration of s 473DD(b)(i) infect the rest of its consideration of the criteria in s 473DD, in particular s 473DD(a) that the Authority be satisfied that there are exceptional circumstances to justify considering the new information. Consistently with AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494, the Minister in this case accepted that if there was an error in relation to the Authority's approach to s 473DD(b)(i), then it would have affected the Authority's assessment of whether it was satisfied under s 473DD(a); however, the Minister submitted that there was no error in connection with s 473DD(b)(i). The Minister also sought to uphold the primary judge's conclusion that if there was any error, it was not material.

Consideration

31    The proposed amended ground of appeal seeks a finding that the reasoning of the Authority in rejecting the new information was unreasonable, illogical or irrational. That may occur when the outcome of the exercise of statutory power is one that no rational or logical decision-maker could reach, or because it is not open to the decision-maker to engage in the process of reasoning in which it did engage and to make findings it did make on the material before it: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133] (Crennan and Bell JJ); Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [34]-[35] (Allsop CJ, Besanko and O'Callaghan JJ).

32    Where reasons are given, the court ordinarily looks to those reasons to assess the exercise of the power: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]-[47] (Allsop CJ, Robertson and Mortimer JJ). But a characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made, and not every lapse of logic will give rise to jurisdictional error: SZMDS at [130]; Djokovic at [34]. It is not sufficient that the court disagrees with the basis of the fact-finding or associated reasoning or even strongly or emphatically disagrees. It must be shown that the findings were not rationally open to be made: CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [65] (Moshinsky, O'Bryan and Cheeseman JJ) and the cases cited there.

33    Judged by reference to those criteria, there is no basis for the appellant to assert that the reasoning of the Authority was irrational, illogical or unreasonable when it was not satisfied that he could not have provided the new information to the delegate. Obviously, the Authority was not bound to simply accept the explanations that were given by the appellant and his brother. It was entitled to examine the explanation with a critical eye.

34    The explanation provided in the letters and in R's earlier statement was to the effect that both R and the appellant were afraid that R would be detained by the Australian immigration authorities for a long period if he revealed that he was a member of the LTTE. But there was no information before the Authority to corroborate that this was a widely held belief. The Authority was entitled to take into account, as telling against acceptance of this explanation, that the appellant had legal assistance in putting his claims to the delegate, he was given ample opportunity to raise any new claims, he was asked about his brother's role with the LTTE, and yet did not raise the new information or its contents with the delegate.

35    Whether or not the Authority was correct to decide that this meant that it was not satisfied that the appellant could not have provided the new information earlier is not to the point. What is relevant is that those matters made it reasonably open to the Authority not to accept the explanations that had been proffered.

36    In relation to the first specific aspect of the appeal as put by counsel for the appellant, there are two points to be made.

37    The first point is that there was material before the Authority on which the Authority could rationally have been satisfied that the appellant was aware of his brother's profile in the LTTE at the time of the protection visa application before the delegate of the Minister. That material is, in particular, the very letter from the appellant which he sought to put before the Authority. That letter says, among other things:

I was afraid in the past that my brother would be detained in Australian immigration detention centre for a long period if I had revealed that he was an LTTE to the Australian immigration in the past. I had heard that Tamils who had disclosed they had been members of the LTTE had been detained in Australian immigration detention centre for more than years?

38    The appellant also says in the letter 'I know about [my] brother's profile'.

39    The appellant is here giving an explanation as to why 'in the past' he did not provide full information about his brother's profile. That is reasonably to be taken to mean at the time of the protection visa application before the Minister. It was reasonably open to the Authority to take these indications in the letter from the appellant to be showing that the appellant knew about his brother's profile in the LTTE at the time of the protection visa application, but for the reasons proffered decided not to give that information to the delegate. The submission, therefore, that the Authority did not have any material before it to indicate that the appellant knew about his brother's profile at the time of the protection visa application is without substance.

40    The second point to be made about this aspect of the appeal answers the submission that there was nothing to indicate to the Authority that the appellant had access to the photographs at the time of the protection visa application. That answer emerges from the terms of s 473DD(b) itself, which explicitly place a requirement on the referred applicant to satisfy the Authority that, relevantly, the new information could not have been provided to the Minister. In view of that, and in view of the fact that there is no suggestion in anything that the appellant sought to proffer to the Authority that the appellant did not have access to the photographs at the time of his original protection visa application, the Authority was entitled not to have any regard to that entirely hypothetical suggestion. The Authority, unsurprisingly, made no mention of the possibility that the appellant did not have access to the photographs at the time of the delegate's decision, because that possibility was not put to the Authority.

41    Given the terms of s 473DD(b) and the requirement for the referred applicant to satisfy the Authority that, relevantly here, the photographs could not have been provided, a lack of any consideration of the Authority of that question, let alone the lack of any finding that the appellant could not have provided the photographs because he did not have them, bespeaks no error on the part of the Authority.

42    In relation to the second aspect of the appeal, namely, the question of the stringency with which the words 'could not have been provided' should have been understood and applied by the Authority, the Minister submitted that the question does not arise, because the Authority's reasons should be understood to mean that the Authority rejected the explanation given. The Authority, the Minister submits, did not accept the veracity of the explanation as to why the appellant and R were afraid to disclose R's full involvement with the LTTE.

43    That is said to be implicit, in particular, in paragraphs 8 and 9 of the Authority's reasons, where the Authority says that while it notes the appellant's explanation for not giving new information sooner, it is not satisfied that the appellant could not have given the information before the delegate made the decision. The Authority then goes on to consider, in effect, the opportunities that the appellant had to disclose the information and the relevant fact that the appellant was assisted by solicitors at the time of the protection visa application. The Authority then goes on in paragraph 9 to indicate that it is not satisfied that the new claim that R was an LTTE cadre and that the appellant had seen the photograph and identified his brother wearing the uniform was significant or credible.

44    I accept on the basis of those findings of the Authority that the Authority did, indeed, refuse to accept the explanation that the appellant had given. Reading paragraphs 8 and 9 as a whole, it is plain that the Authority did not accept the credibility of the explanation, because the Authority considered that in the circumstances of the application for the protection visa as outlined by the Authority, the appellant would have provided the information to the delegate had it been correct, substantial and credible. Since, for reasons I have already outlined, those conclusions were rationally open to the Authority to reach, there is no need to consider whether the Authority also applied a criterion for whether or not the material could not have been provided to the Minister that was more stringent than the section requires.

45    For those reasons I am not satisfied that the primary judge fell into error when, at [40] of his Honour's reasons for decision, he characterised ground of review 1 before him as seeking merits review. That was an appropriate reflection of his Honour's conclusion that the appellant had not established irrationality, unreasonableness or illogicality to the required degree in the Authority's reasoning; therefore, the appellant's disagreement with that reasoning resolved to disagreement with its merits. For the same reasons, I respectfully agree with the primary judge's conclusion at [43] that there is nothing erroneous about the Authority's non-satisfaction that the appellant could not have given the new information before the delegate made the decision, and that a rational or logical Authority could also have not been so satisfied. As the primary judge said, the Authority was not obliged to accept the explanation actually offered by the appellant.

46    In reality, it is not correct to say that the evidence all pointed the other way, because the evidence or, more specifically, the material before the Authority included the appellant's conduct of himself before the delegate and, for the reasons the Authority gave, it was rationally open to conclude in light of that conduct that the appellant could have provided information about his brother's profile and the relevant photographs and other materials to the Authority.

47    For those reasons, no error on the part of the Authority was made out before the primary judge or has been made out on this appeal. It is therefore unnecessary to consider the further issue of whether or not any such error was material. The appeal will be dismissed.

Postscript

48    Given the basis on which the matter was argued, as set out above, the lack of merit in the proposed ground meant that leave to rely on it was refused. The original ground of appeal was a generic one, apparently put at a time when the appellant did not have legal representation, and referred to the grounds of review in the Federal Circuit Court. Since those grounds were only pressed to the extent reflected in the proposed ground of appeal, it followed that the appeal was to be dismissed.

Associate:

Dated:    28 November 2023