Federal Court of Australia

EDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1534

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

Introduction

1    The appellant is Sri Lankan. He arrived in Australia on 28 October 2012 as what the Migration Act 1958 (Cth) (hereafter, the “Act”) describes as an “unauthorised maritime arrival”. On 4 November 2016, he made an application under the Act for a safe haven enterprise visa (or “SHEV”) (hereafter, the “Visa Application”). On 8 June 2017, a delegate of the first respondent (the “Minister”—or, more accurately, a delegate of the Minister for Immigration and Border Protection, as the relevant department was then known) refused that application (the “Delegate’s Decision”).

2    On 13 June 2017, the Delegate’s Decision was referred for review to the second respondent (hereafter, the “IAA”). The IAA affirmed the Delegate’s Decision on 21 August 2017 (hereafter, the “First IAA Decision”).

3    The appellant then applied to the Federal Circuit Court of Australia (hereafter, the “FCCA”) for judicial review of the First IAA Decision. On 19 February 2019, the FCCA by consent:

(1)    issued a writ of certiorari quashing the First IAA Decision;

(2)    issued a writ of mandamus directing the IAA to reconsider and determine the appellant’s matter according to law; and

(3)    made a costs order against the Minister,

(hereafter, the “First FCCA Review”). It did so on the basis that the First IAA Decision was affected by jurisdictional error in that it:

(4)    overlooked significant and material new information; and

(5)    failed to consider whether the “primary rule” in s 473DB(1) of the Act applied or whether the exceptions to the “primary rule” in ss 473DC, 473DD and 473DE of the Act were applicable.

4    On 17 May 2019, a differently constituted IAA affirmed the Delegate’s Decision.

5    The appellant then applied to the FCCA for judicial review of that decision (hereafter, the “Second IAA Decision”). On 10 February 2020, the FCCA dismissed that application with costs, and on 5 March 2020 issued its reasons for doing so: EDA17 v Minister for Immigration & Anor [2020] FCCA 249 (Judge Street).

6    By notice of appeal dated 4 March 2020, the appellant appeals from the entirety of the primary judgment; and seeks, in lieu thereof, a writ of certiorari to quash the Second IAA Decision, a writ of mandamus to direct the IAA to rehear and re-determine the Visa Application according to law, and costs.

7    On 17 May 2023, the appellant filed an interlocutory application seeking leave to rely on new grounds of appeal (hereafter, the “Interlocutory Application”).

8    For the reasons that follow, the Interlocutory Application will be granted and the appeal shall be dismissed, with costs.

The appellant’s claim to protection

9    Relevantly to this appeal, the appellant made the following claims in relation to his Visa Application, namely that:

(1)    his father was killed on 26 October 1995 (when the appellant was six years old) by a bomb blast during civil war in Sri Lanka;

(2)    growing up in Sri Lanka was very difficult because Tamil people like him have faced decades of persecution and violence;

(3)    for one year during his childhood, he was unable to attend school, as it was too dangerous to do so;

(4)    during the Sri Lankan civil war, the Sri Lankan army would shoot people at random, and there were regular kidnappings and bomb blasts;

(5)    in 2011, while president of the sporting division of his community club and a prominent and well-known member of his community, he became involved in a local election—he was approached by Kitnar Tharmaratnam, a candidate running in the election and a distant relative, who asked for members of the club to help with his campaign for the Tamil National Alliance (hereafter, the “TNA”);

(6)    he also campaigned with a Mr Vasanthakumar, a more senior member of the TNA who worked with the elected official of the Jaffna District (a Mr Sritharan), who supported Mr Tharmaratnam;

(7)    in the two weeks leading up to the 23 July 2011 local election, he assisted Mr Tharmaratnam’s campaign by door knocking, handing out pamphlets, putting up posters, instructing people how to vote and spreading Mr Tharmaratnam’s message throughout the community—generally he received direct instructions from Mr Tharmaratnam;

(8)    he led the involvement of younger supporters in the campaign;

(9)    Mr Tharmaratnam considered him to be one of his most important supporters due to his position in the sporting club and wider community, and his (the appellant’s) efforts were pivotal in the outcome of the 23 July 2011 local election;

(10)    on 21 July 2011, while he and several others who were campaigning with Mr Vasanthakumar, a group of 17 men wearing masks attacked their vehicles with weapons like cricket bats and stumps, leaving the vehicle damaged and some campaigners injured;

(11)    during that incident, he was hit in the head but not seriously injured—but he did not go to the police because he believed the police were politically involved and would not assist;

(12)    on 27 July 2011, Mr Tharmaratnam was elected in the local election;

(13)    about three weeks after Mr Tharmaratnam was elected, he (the appellant) and others were the victims of attacks similar to those outlined above in subparagraph (10) purportedly in revenge by people who had lost influence with government;

(14)    on 1 October 2011, an associate of his was murdered in circumstances where political involvement was “the only explanation”, but this incident was not investigated by police;

(15)    in early 2012, he started working as an auto-rickshaw driver in a different region of Sri Lanka and tried to keep a low profile—but, in April 2012, he and a number of friends were detained by police overnight without any reason being given;

(16)    in May 2012, he was kidnapped by four people and taken to Army Camp 512 for about five hours where he was undressed, tied, violently beaten, interrogated about TNA involvement, and sexually assaulted;

(17)    on 27 November 2012, Remembrance Day for the Liberation Tigers, 28 Tamils were arrested by the Sri Lankan army; and

(18)    in both early 2013 (after having departed Sri Lanka) and in July 2016, the police asked after him at his mother’s house.

The statutory framework

10    Section 36 of the Act identifies the criteria upon satisfaction of which the grant of a protection visa—including a SHEV—is conditioned. Relevantly, it provides as follows:

36 Protection visas—criteria provided for by this Act

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) 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; …

…

(2A)    A non‑citizen will suffer significant harm if:

(a)    the non‑citizen will be arbitrarily deprived of his or her life; or

(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.

(2B)    However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

11    “Refugee” is a term defined by s 5H of the Act:

5H Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is 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; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

…

…

12    The meaning of “well-founded fear of persecution” is defined by s 5J of the Act:

5J Meaning of well-founded fear of persecution

(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.

Note: For membership of a particular social group, see sections 5K and 5L.

(2)    A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3)    A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)    conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)    alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)    conceal his or her true race, ethnicity, nationality or country of origin;

(iii)    alter his or her political beliefs or conceal his or her true political beliefs;

(iv)    conceal a physical, psychological or intellectual disability;

(v)    enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)    alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)    If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)    the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)    Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)    In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

13    Section 5(1) of the Act defines “cruel or inhuman treatment or punishment”, “degrading treatment or punishment”, “fast track applicant” and “fast track decision”:

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant

…

fast track applicant means:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

(ii)    to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

(iii)    who has made a valid application for a protection visa in accordance with the determination; or

…

fast track decision means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:

(a)    because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or

(b)    relying on:

(i)    subsection 5H(2); or

(ii)    subsection 36(1B) or (1C); or

(iii)    paragraph 36(2C)(a) or (b).

Note:    Some decisions made in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision are reviewable by the Administrative Appeals Tribunal in accordance with section 500.

14    Part 7AA of the Act establishes a framework for the review of fast track decisions. That review process relevantly provides for:

(1)    the automatic referral, by the Minister, of fast track reviewable decisions to the IAA (s 473CA);

(2)    the provision of certain materials to the IAA for review from the Minister (s 473CB), namely materials comprising the information upon which the IAA must base its review (s 473DB);

(3)    limitations upon the extent to which the IAA may, for the purposes of its review, acquire or consider “new information” (ss 473DC and 473DD); and

(4)    the obligation on the IAA to either affirm or remit for reconsideration fast track reviewable decisions (s 473CC).

15    Sections 473DC and 473DD of the Act loom large in this appeal. They relevantly provide:

473DC Getting new information

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

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

(b)    the Authority considers may be relevant.

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

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

(a)    in writing; or

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

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

The Second IAA Decision

16    On 18 March 2019, the appellant’s representative sent an email to the IAA (hereafter, the “March 2019 Submissions”), which included two attachments.

17    The first attachment comprised of a written submission, which purported to attest that:

(1)    abductions continued in Sri Lanka, targeting Sri Lankan Tamils;

(2)    Mr Gotabaya Rajapakse—who has been accused of killing Tamils—had been nominated for and may win the Sri Lankan presidency;

(3)    unlawful killings (including by persons linked to the government) and torture continue to occur in Sri Lanka;

(4)    the police in Sri Lanka operate with impunity;

(5)    due to having left Sri Lanka unlawfully and without a passport, the appellant would be charged under the Immigration and Emigration Act of Sri Lanka;

(6)    the Immigration and Emigration Act of Sri Lanka would be applied against the appellant in a discriminatory manner due to his ethnicity, political opinion, and perceived opinion against the Sri Lankan state and government; and

(7)    there is a real possibility that the appellant would be detained and arrested, and that he would not have the means to pay bail, nor would his family be able to provide any financial or personal guarantee.

18    The second attachment contained an internet post titled “Sri Lanka: Two abductions reported every month”, a Facebook post relating to the nomination of Mr Rajapaksa in the upcoming 2019 Presidential elections, and a US Department of State report titled “Country Report on Human Rights Practices 2018 – Sri Lanka”.

19    In response to a 2018 report produced by the Department of Foreign Affairs and Trade (hereafter, the “DFAT Report”) and certain questions that had been put to the appellant, the appellant’s representative sent another email to the IAA (hereafter, the “April 2019 Submissions”), which included an attached “further statement” plus three other numbered attachments that included a suite of articles about the political or security situation in Sri Lanka.

20    The further statement comprised of a written submission, which purported to attest that:

(1)    the DFAT Report containing information about Sri Lanka was outdated and did not address political chaos and other issues that plagued contemporary Sri Lanka;

(2)    there had been no unity government since October 2018, when Prime Minister Wickramasinghe was dismissed;

(3)    Mr Sambandan was no longer an opposition leader;

(4)    the TNA no longer held 16 seats;

(5)    the TNA no longer held a majority in the Northern Provincial Council, as it had been dissolved with the province and was governed by a governor appointed by the president;

(6)    Mr Rajapakse’s party gaining a majority in a local election indicates that he would win the future national election, which would cause Tamils to be targeted and face harm;

(7)    the number of extra-judicial killings and abductions has not reduced, and in fact had worsened;

(8)    the DFAT Report failed to observe the drafting and presenting of “a new draconian law called the Counter Terrorism Act”;

(9)    the appellant would be considered an unlawful departure involuntary returnee, would be charged under the Immigration Act (presumably the Immigration and Emigration Act of Sri Lanka) and would be unable to pay the fine or bail money (and, further, unable to rely upon his family to pay on his behalf); and

(10)    there have been no constructive changes in relation to ethnic, religious, criminal or political issues in Sri Lanka, such that, if returned to Sri Lanka, he would face serious or significant harm.

21    En route to affirming the Delegate’s Decision, the IAA concluded that the appellant did not meet the definition of refugee in s 5H(1) of the Act, because he did not have a well-founded fear of persecution. The IAA came so to conclude on two bases.

22    First, the IAA did not accept that the appellant would face a real chance of harm on the basis of his past role in the 2011 election or for expressing pro-Tamil political opinion if he returned to Sri Lanka. Specifically, the IAA:

(1)    did not accept the appellant held a particularly prominent position in his community (outside of a sporting context);

(2)    took the view that some of the events that the appellant reported were not politically motivated or related to elections, nor were they related to his involvement with the TNA;

(3)    did not accept that some of the events that the appellant reported had occurred at all;

(4)    did not accept that the appellant was politically active or had come to the attention of Sri Lankan authorities;

(5)    accepted that the appellant had a genuine pro-Tamil political opinion and had been a low-level supporter of the TNA; but found that the TNA was, at that time, the official opposition party;

(6)    did not accept that the appellant would face a real chance of harm on the basis of his past role in the 2011 elections or for expressing his political opinion if returned to Sri Lanka;

(7)    accepted that the DFAT Report did not address the political unrest that occurred at the end of 2018, but found that those political matters were resolved;

(8)    was not satisfied that the appellant would face a real chance of serious harm from Sri Lankan authorities or opponents of the TNA at that time or in the foreseeable future;

(9)    did not accept the appellant was of interest to Sri Lankan authorities at the time he departed Sri Lanka;

(10)    accepted that, on one occasion, the appellant was wrongly detained overnight at a police station; but also that he had been released the following day (once police suspicion of his having been involved in the Liberation Tigers of Tamil Eelam had been allayed);

(11)    found that the appellant did not have a profile that would suggest that he would feature on any stop or watch list, that he did not have any extant court order, arrest warrant, or order to impound his passport, and that he had not been involved in any politically sensitive or criminal activities that would attract the interest of Sri Lankan authorities;

(12)    found that no returnee from Australia to Sri Lanka had been charged under the Prevention of Terrorism Act 1979 of Sri Lanka since 2016, and that no new legislation (of the kind described above at paragraph [20(8)] had been put before the Sri Lankan Parliament;

(13)    accepted country information that indicated that the situation for Tamils generally in Sri Lanka had significantly improved since the appellant had left;

(14)    took the view that the political instability related to the dismissal of Sri Lankan Prime Minister Wickremesinghe had resolved; and

(15)    was not satisfied that the appellant’s age, religion, gender, Tamil ethnicity, overnight detention, support for the TNA, residence in a former LTTE-controlled area, seeking of asylum in Australia or any other characteristic, either separately or cumulatively, would be sufficient to cause the appellant to be a person of concern to Sri Lankan authorities.

23    Second, the IAA was not satisfied there was a real chance that the appellant would face serious harm as a returned asylum seeker. On that score, the IAA:

(1)    accepted that the appellant would return to Sri Lanka on temporary travel documents, but observed that many other Sri Lankan nationals have returned in similar circumstances, most of whom were of Tamil background;

(2)    took the view that the appellant’s background, history, employment, resourcefulness, and family contact meant that his capacity to subsist upon returning to Sri Lanka would not be threatened by practical challenges;

(3)    found that while returnees might be detained at the airport for several hours, the appellant would not be subject to mistreatment during that process, and would not come to any particular attention of Sri Lankan authorities;

(4)    found that while the appellant may be charged under the Sri Lankan Immigrants and Emigrants Act for having departed Sri Lanka illegally, and may spend some years on bail, he did not face a real chance of a custodial sentence and any fines would be payable on instalment; and

(5)    found that the Sri Lankan Immigrants and Emigrants Act was not applied in a discriminatory manner, such that any process or penalty that the appellant may face would not constitute persecution within the meaning of the Act.

24    Additionally (and on the subject of Australia’s obligations of complementary protection), the IAA concluded that the appellant did not have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there was a real risk that the appellant would suffer significant harm (as defined). In doing so, the IAA:

(1)    accepted that the appellant may be subject to investigation and processing under the Sri Lankan Immigrants and Emigrants Act for his illegal departure;

(2)    was not satisfied that the appellant would suffer the death penalty, arbitrary deprivation of life, or torture as a consequence of his illegal departure;

(3)    was not satisfied that the appellant would be subjected to treatment or penalty that was intended to inflict pain or suffering that could reasonably be regarded as cruel or inhuman in nature;

(4)    was not satisfied that the appellant would be subjected to severe pain or suffering that was intended to cause extreme humiliation;

(5)    accepted that the appellant would have to re-establish himself after an extended period in Australia, may be monitored or receive a call or visit from authorities, and may face some social stigma—but that those things did not amount to significant harm; and

(6)    found that the appellant would not face arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

25    Insofar as concerned the March 2019 Submissions, the IAA was not satisfied that there were exceptional circumstances to justify considering them as new information. Insofar as concerned the April 2019 Submissions, the IAA was satisfied that there were exceptional circumstances to justify considering them as new information.

The Second FCCA Review and the present appeal

26    The appellant sought judicial review of the Second IAA Decision. That application proceeded upon two grounds, neither of which feature in the grounds now pressed before this court.

27    By notice of appeal dated 4 March 2020, the appellant originally pressed the same two grounds as were agitated below, as well as two new grounds. However, by way of the Interlocutory Application, he sought to abandon those four grounds and instead rely on two, entirely different grounds, namely:

1.    The primary judge erred by failing to find that the [IAA] failed to assess whether "exceptional circumstances" existed to consider new information given by the appellant on 18 March 2019 that he was at real risk of significant harm because he would be imprisoned for leaving Sri Lanka illegally and that prison conditions were poor and overcrowded. The error is a failure to perform the "procedural duty" in s 473D[D] of the Migration Act 1958 (Cth) and necessarily also a misapplication of s 473DD contrary to the High Court’s decision in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494.

2.    The primary judge erred by failing to find that the [IAA] failed to consider claims and evidence about poor prison conditions and the appellant’s inability to secure release on bail and as a result, failed to perform its task of determining whether there was a real risk that the appellant would be subjected to degrading, or cruel and inhuman treatment. The error may be characterised as a constructive failure to exercise jurisdiction: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 at [72]-[74].

28    It is convenient to refer to:

(1)    the information contained within the March 2019 Submissions that the appellant might be imprisoned for leaving Sri Lanka illegally and that prison conditions were poor and overcrowded as the “New Information”; and

(2)    the appellant’s claims and evidence about poor prison conditions, and his claimed inability to secure release on bail, as the “Prison Claims”.

29    It may be accepted that the present appeal assumes a complexion quite different to the case for judicial review that was run in the court below. The primary judgment focused upon the April 2019 Submissions, whereas in the appeal before this court the focus is upon the March 2019 Submissions.

30    It should also be noted that while the IAA considered the appellant’s potential return to Sri Lanka both in relation to s 36(2)(a) (see especially paragraphs [22] and [23], above) and s 36(2)(aa) (see paragraph [24], above), it is apparent from the appellant’s use of the phrases “real risk of significant harm” and “real risk [of] degrading, or cruel and inhuman treatment”, that the present grounds of appeal focus upon the IAA’s consideration of the criteria in s 36(2)(aa) and the provisions that inform it (namely, s 36(2A)(d) and (e)).

31    In part because the appeal proceeds upon entirely different grounds, it is not necessary to set out the reasons of the learned primary judge. If the Second IAA Decision was attended by jurisdictional error as is alleged, then the appeal should be allowed; and, if it was not, then the appeal should be dismissed. Either way, the focus must fix upon the Second IAA Decision.

Leave to argue new grounds of appeal

32    Leave to argue a ground of appeal not raised before a primary judge should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588, 598 [46] (Kiefel, Weinberg and Stone JJ).

33    The Minister submits that the decision by the appellant not to advance before the primary judge the grounds that are now proposed was a forensic choice, and that there is insufficient merit in each such that the granting of leave is not warranted.

34    The appellant submits that the grounds now agitated, had they been raised before the FCCA, would not have resulted in the case being conducted differently, and that considerable injustice and a real risk of serious harm might attend the appellant if leave were refused now.

35    I am satisfied that the interests of justice require that the appellant should have leave to agitate his new grounds of appeal. For the reasons that follow, the grounds are possessed of sufficient merit to warrant their consideration and I do not consider that there is material prejudice to the Minister in permitting their ventilation.

Proposed ground one

36    By his first proposed appeal ground, the appellant submits that the IAA failed to assess whether some of the New Information was such that it should have been satisfied that there were exceptional circumstances that justified its consideration, pursuant to s 473DD of the Act.

37    The appellant asserts that there was here a failure to assess whether the New Information could be received as such under s 473DD of the Act. That contention, he says, is put beyond doubt by the High Court’s decision in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494, which was handed down after the primary judge’s decision.

38    The Minister concedes that there was an error, in that the IAA failed to assess the New Information “through the filtering mechanism in section 473DD of the Act”. To put it another way, it is conceded that the IAA was obliged to but did not consider whether to receive the New Information as such by reference to the criteria in s 473DD of the Act. Nonetheless, the Minister resists the ground on two related bases, namely that:

(1)    the information concerning poor prison conditions in Sri Lanka was information of a kind that was already before the IAA in the form of a report produced by the Asylum Seeker Resource Centre (the “ASRC Report”), as well as a DFAT report that made reference to prison conditions not meeting international standards; and

(2)    the IAA in any event considered the first attachment to the April 2019 Submissions, which included the appellant’s statement that he did not have the financial means to pay a fine or bail money and that his family would not be able to pay due to their own financial hardship.

39    The Minister submits that while the New Information was not properly “passed through the filter” of s 473DD of the Act, the relevant information was, in any event, before the IAA—which, the Minister submits, makes any error concerning the misapplication of s 473DD of the Act immaterial.

40    The appellant maintains that materiality turns upon whether or not the IAA actually considered the Prison Claims. The appellant claims that it did not, and that that failure forms the basis of the second ground of appeal. There is, then, a measure of interdependence to the two grounds.

41    Regardless—and on the strength of the Minister’s concessions—I am satisfied that the IAA fell into error by not properly applying the test for which s 473DD of the Act provides to the New Information. I shall later return to the more significant question of whether that error was material.

Proposed ground two

42    By his second proposed ground, the appellant asserts that the IAA failed properly to determine whether there was a real risk that the appellant would be subjected to degrading, cruel or inhuman treatment or punishment; and that that failure amounts to a constructive failure on its part to exercise its jurisdiction.

43    Counsel for the appellant submitted that the Prison Claims were put to the IAA; specifically, that, due to his having left Sri Lanka unlawfully, the appellant would be detained upon return, and would have neither sufficient money nor family support to secure bail, such that he would then be subjected to poor prison conditions. It was said that the IAA should have recognised the significance of the Prison Claims, especially in relation to pre-sentence remand, and should have recognised the capacity of the Prison Claims rationally to affect the assessment of whether the appellant would face a real risk of significant harm.

44    Counsel for the appellant asserted that, although the IAA considered the period of time over which the appellant may be detained at the airport, the appellant’s claim was not merely about poor airport prison conditions; but extended to poor prison conditions during any time that he spent detained. It was submitted that the ASRC Report noted that a returnee might be remanded for a period of time at Negombo prison, and that the IAA’s contrary conclusion was demonstrative of its having failed to consider the possibility of pre-sentence remand. Because the IAA did not consider the possibility of pre-sentence remand, it was said that it had failed properly to consider the appellant’s prospects of securing bail and therefore being subjected to poor prison conditions.

45    Counsel for the appellant compared the present case with what was considered in BXK16 v Minister for Home Affairs [2022] FCA 251 (hereafter, “BXK16”) and AVQ15 v Minister for Immigration and Border Protection and Another [2018] FCAFC 133 (hereafter, “AVQ15”). BXK16 was said to be an example of where a tribunal observed a clear distinction between remand and a custodial sentence. AVQ15 was said to stand for the contention that the IAA “did at least have to consider the question [that a period on remand did give rise to a risk of harm] in order to discharge its statutory task”, because even a short period of time on remand would not necessarily fall outside the definitions of cruel or inhuman treatment or punishment, or degrading treatment or punishment (see s 36(2A)(d) and (e)).

46    The appellant relied upon the distinction between analogous cases in which the court found jurisdictional error, namely:

(1)    Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (Griffiths J); and

(2)    ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 (Charlesworth J; hereafter, “ABA15”),

and cases in which it did not, such as:

(3)    SZTAP v Minister for Immigration and Border Protection [2017] FCA 1370 (Griffiths J); and

(4)    DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (Beach J, O’Callaghan J, Anastassiou J; hereafter “DCP16”),

The appellant asserts that this appeal is more similar in its circumstances to those where jurisdictional error was found to have been committed.

47    The Minister submits that the cases in which jurisdictional error was recognised should be distinguished from this appeal for three reasons, namely because:

(1)    in ACF17 v Minister for Immigration and Border Protection [2019] FCA 1902 (hereafter, “ACF17”), Moshinsky J held (at [32]) that:

In SZTQS, the Tribunal found that bail is routinely given on the accused’s own recognisance “although a family member is also required to provide surety”. This was one of the matters that Griffiths J considered provided an adequate basis for the primary judge’s finding and conclusion: see SZTQS at [43]-[45]. Contrastingly, in the present case, the Tribunal found that the returnee “may” be required to have a family member act as guarantor.

(2)    ABA15 was a procedural fairness case under Part 7 of the Act, whereas this is an IAA case under Part 7AA of the Act, in respect of which the requirements of procedural fairness have been excluded by statute; and

(3)    in DCP16, the Court held (at [100]):

In our view the primary judge was correct to find that ABA15 was distinguishable. In the present case the Authority’s finding was that a family member may have to act as guarantor, not that a family member “is also required” to act as guarantor as discussed in ABA15 (at [46], [49], [50] and [52]). Therefore, any implicit finding about whether a family member would act as guarantor was not a critical step in the Authority’s reasons (cf ABA15 at [53], [57] and [58]). But in any event ABA15 may go too far. In particular, it may not be necessary for a decision-maker to have positive evidence that a family member is willing to act as guarantor for a person (cf ABA15 at [52]). Rather, if there is evidence that a person has family in the country of return, a decision-maker may permissibly reason that a family member may be prepared to act as guarantor (if that is required), unless the person puts forward reasons why the family member cannot or will not do so. But to so reason may first require that the decision maker has put the person on notice as to the guarantee question.

48    The Minister also submits that ACF17 is distinguishable from the present case because of what Moshinsky J held at [29], namely:

Secondly, unlike ABA15, this is not a case where any implicit finding that a family member would provide surety for bail, was a critical step in the Authority’s finding that any period of detention would be brief. In ABA15, the Tribunal found that bail is routinely given on the accused’s own recognisance, although a family member “is also required to provide surety”: ABA15 at [46]. In contrast, in the present case, the Authority found that in most cases where a returnee pleads guilty, they are immediately granted bail on personal surety, or they “may” be required to have a family member act as guarantor. In these circumstances, any implicit finding about whether a family member would act as guarantor was not a critical step in the Authority’s reasons: see DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (DCP16) at [100] per Beach, O’Callaghan and Anastassiou JJ. See also at [101] and [102].

49    The Minister submits that the IAA satisfactorily considered the remand question because it expressly found that the appellant would not face a real chance of a custodial sentence, and expressly had regard for the appellant’s capacity to pay bail money or a fine, concluding that the appellant would not face any period of custody beyond a few days at most. It was said that the IAA did so having considered, in substance (and albeit from different sources), the information that was erroneously excluded from consideration. There was, it was said, no reason to infer that either the prison conditions or the inability to secure bail was not considered by the IAA.

50    The Minister relies, in part, on BXK16 in support of the argument that is open to the court to find that, notwithstanding that the IAA did not specifically address the appellant’s capacity to pay for bail, that the words “personal surety” or “personal guarantee” in the IAA’s reasons should be understood as the IAA concluding that no exchange or requirement to pay money would be required in order for the appellant to secure bail.

51    The IAA’s analysis in relation to any potential loss of liberty was as follows (references omitted; emphasis added):

I accept that the [appellant] would be returning to Sri Lanka after having departed the country illegally. While the [appellant] has advised that he holds a valid Sri Lankan passport, he did not use this passport to leave the country. The [appellant] has not indicated whether he would return to Sri Lanka using his own passport or whether he would return on temporary travel documents. DFAT reports that for returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed hometown police, contacting the person’s claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. While returnees might be at the airport for several hours while these procedures take place and due to being processed en masse, DFAT understands returnees are not subject to mistreatment during processing at the airport. I am not satisfied that the [appellant] will come to any particular attention of the authorities as a result of this process as I do not consider that he has any profile of interest to the Sri Lankan authorities beyond having departed the country illegally.

Where an illegal departure is suspected, returnees are charged under the Immigrants and Emigrants Act (I&EA). DFAT understands that in most cases, these individuals are arrested at the airport. As part of this process, police will take photographs, finger prints and statements and make relevant enquiries and checks to be sure that the person is not trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. At the earliest available opportunity police transport the individual to the closest Magistrates Court. The Court then makes a determination as to the next steps for each individual. Should a magistrate not be available – for example, because of a weekend or public holiday – those charged may be held in a holding cell at the airport for up to two days. As noted above, DFAT understands that returnees are not subject to mistreatment during processing at the airport.

Country information from DFAT indicates that penalties applicable for passengers illegally departing in this context can include up to five years imprisonment and fines of up to 200,000 Sri Lanka Rupees. A guilty plea will attract a fine which, if the [appellant] does not have the means to pay, can be arranged to be paid by instalment and the defendant is free to go. Where a returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member and they are free to go. In particular, advice from Sri Lanka’s Attorney General’s Department to DFAT is that no returnee who left Sri Lanka unlawfully as a simple passenger on a people smuggling vessel has been given a custodial sentence for their breach of the I&EA. If the [appellant] is charged and fined under the I&EA, the country information indicates he would be released, or released on personal surety or guarantee by a family member. There is no suggestion the [appellant] was anything other than an ordinary illegal departee from Sri Lanka. In that context, I find that he would not face a real chance of a custodial sentence. As noted above, the [appellant] may be detained for up to two days in a holding cell at the airport whilst waiting to be brought before a magistrate. He may incur legal and transport costs travelling to and from court and he may spend many years on bail which can involve monthly reporting to police at the returnee’s expense. On the evidence before me, I am not satisfied that a brief period of detention at the airport, the imposition of any fine, possible surety or guarantee and associated costs and reporting requirements would constitute serious harm for the [appellant], noting that fines can be paid by instalment.

52    Counsel for the Minister submitted that what the IAA considered in relation to any custodial sentence was that “in no universe, whether he pleads guilty or not guilty, [would] he be sentenced to a term of imprisonment”—in other words, that the question of remand had been considered by the bolded sections of the extract above.

53    It is apparent that the IAA came to the conclusion that, on any eventuality, the appellant would, upon seeing a magistrate, likely be released. Notably, however, the IAA used the phrase “bail on the basis of personal surety or guarantee by a family member” (emphasis added). There are two possible interpretations of that aspect of the IAA’s reasons, namely that:

(1)    in the usual case, a returnee might, at his or her option, offer either a guarantee by a family member or some personal surety; or

(2)    in the usual case, the magistrate may decide which of the two options should be required.

54    On the first interpretation, assuming that a personal surety does not require any exchange or payment of money, it matters not whether the appellant pleads guilty or not guilty: the appellant would be free to go upon pleading before a magistrate.

55    If, however, the second interpretation is accepted, then:

(1)    if the appellant were to plead not guilty; and

(2)    if the magistrate were not to be satisfied by personal surety alone; and

(3)    if the appellant is unable to obtain a guarantee by a family member (as he claims),

then, on the IAA’s reasons, the appellant would not be granted bail. On this second interpretation—and in circumstances where the appellant submitted that his relatives would not be able to furnish any financial or personal guarantee—the IAA perhaps should specifically have considered the Prison Claims.

56    However, even if the second interpretation were preferable, the IAA did not reason that a guarantee by a family member would be required, only that it may be required. This appeal is thus more akin to ACF17 and DCP16, in that any requirement that a family member should act as guarantor was not a critical step in the IAA’s reasons. To the extent that the second interpretation is preferable, the failure specifically to consider the Prison Claims is not an error of jurisdiction.

57    Regardless of which interpretation is to be accepted, the appellant also submits that a personal surety may—on the IAA’s reasons—require payment of money, which neither the appellant nor his family could provide. As such, it was said to be incumbent upon the IAA to consider the possibility of remand and resulting prison conditions, which it failed to do by virtue of having failed properly to consider the Prison Claims.

58    However preferable it might have been for the IAA to have expressly considered the possibility that the appellant might be required to pay money in order to secure bail, at its highest the requirement to pay money to secure bail is nothing more than a mere possibility. It was not a critical step in the IAA’s path of reasoning and, as such, any failure to consider the possibility was, at most, an error within jurisdiction: ACF17 and DCP16.

59    Further, the Minister claims that any failure properly to consider the Prison Claims was immaterial because:

(1)    the relevant provisions in the Sri Lankan law are laws of general application;

(2)    any period of imprisonment (and consequential exposure to harm) lacked any element of intention necessary to qualify as the infliction of significant harm.

Materiality

60    Following from that last observation, materiality looms in this appeal in multiple ways. It is convenient now to address them in the order in which they arise.

Whether the New Information was already before the IAA

61    The Minister submits (see paragraph [38] above) that the IAA’s failure to consider the New Information “through the filtering mechanism of section 473DD of the Act” (the “s 473DD Error”) was immaterial because the relevant information was otherwise and in any event before the IAA. The appellant asserts that the s 473DD Error was material—and, therefore, bespeaks the presence of jurisdictional error—insofar as the IAA failed to consider the Prison Claims contained within it.

62    For the reasons outlined above, the IAA arguably did not properly consider the appellant’s ability to secure bail (and by extension, did not consider his potential subjection to poor prison conditions)—though, as has been said, the error, if there was one, was not one of jurisdiction. Can it be said, then, that that failure (if there was one) suffices to clothe the s 473DD Error with the requisite veneer of materiality?

63    I am not persuaded that it can. The content of the New Information was, at least in substance, before the IAA notwithstanding the s 473DD Error. Country information made clear that prison conditions in Sri Lanka are below international standards and, by his April 2019 Submissions, the appellant squarely put in issue his potential subjection to imprisonment on the basis that neither he nor his family would have the means to pay a fine or bail.

64    Those realities acknowledged, there is no realistic prospect that, had it seen fit correctly to receive (or consider receiving) the New Information as such, the IAA might have come to any conclusion different to those that it favoured.

65    It follows that I reject appeal ground one. The s 473DD Error was not one that, had it been avoided, might conceivably have led to a different decision. That being so, it cannot be impugned as an error of jurisdiction and there is no occasion to address it by means of prerogative relief.

Whether the Immigrants and Emigrants Act is a law of general application

66    The Minister submits that any failure on behalf of the IAA to consider whether time in a Sri Lankan prison might amount to significant harm could not have affected the IAA Decision because any such imprisonment would be pursuant to laws of general application that apply to all Sri Lankans equally, and could therefore not constitute persecution within the meaning of the Act.

67    The Minister relies on ACF17 in which Moshinsky J held (at [31]):

Fourthly, as in [DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91] (see at [103]), the Authority gave independent reasons for rejecting the applicant’s claims on this point. In relation to the refugee claims, the Authority found that detention under the I&E Act would be the result of a law of general application and does not amount to persecution: at [43]. In relation to complementary protection, the Authority found that, even if the applicant was required to spend a brief period in prison, this would not amount to “significant harm” within s 36(2A) of the Migration Act: at [53]. While the latter finding assumes any period of detention would be brief, the reasoning would seem to be applicable also to a longer period of detention.

68    Respectfully, the Minister’s submissions are misplaced. The appellant’s proposed grounds are that the IAA failed properly to consider the information, claims, or evidence that he may, if removed from Australia, be at risk of harm from poor prison conditions, or at risk of being subjected to degrading, cruel or inhuman treatment due to poor prison conditions. That is, the appellant claims that the IAA failed properly to consider Australia’s complementary protection obligations under s 36(2)(aa) of the Act.

69    Whether the Sri Lankan Immigrants and Emigrants Act is a law of general application is of no moment. Whether the Minister is satisfied that Australia owes protection obligations pursuant to s 36(2)(aa) rests upon whether the appellant might be at real risk of suffering significant harm (as defined) as a foreseeable consequence of being removed from Australia. It does not matter that that harm might come about because of a law of general application.

70    If the IAA wrongly failed to consider what the appellant advanced about the prospects of his subjection to poor prison conditions (and the consequent exposure to harm that might come from it), that error would not be rendered immaterial simply because the legislation that authorises imprisonment is legislation of general application.

Whether any imprisonment would lack the necessary element of intention

71    The Minister submits that the lack of the necessary element of intention afforded the IAA a separate and distinct basis for rejecting the appellant’s claim that he would suffer significant harm in a Sri Lankan prison. That being so, it is said that:

(1)    any error that attended the consideration of what was advanced (if there was one) was not material to the IAA’s decision and, hence, not an error of jurisdiction; and

(2)    for that reason, the proposed second ground of appeal must fail.

72    In DCP16, the Court held (at [103]) (emphasis added):

Finally, and as the Minister pointed out, the Authority gave independent reasons for rejecting the appellant's claims on this point. With refugee claims, it found that the brief period of detention would not amount to “serious harm”. Further, it found that detention under immigration laws is pursuant to a law of general application applied in a non-discriminatory manner, meaning there was no “persecution” ([20]). With complementary protection, it again found that the appellant would only be detained for a short time ([26]). The death penalty, arbitrary deprivation of life and torture were not relevant in circumstances where possible poor prison conditions during any possible brief period of detention would be due to overcrowding, poor sanitation and lack of resources ([27]), and there was no intention to inflict pain, suffering or extreme humiliation. Further, the finding that detention would only be for 3 to 4 days did not depend on whether there was a guarantor. Accordingly, based on this short detention, the prison conditions could not amount to “significant harm” within s 36(2A) ([27]). Such findings provide an independent basis for the Authority's rejection of the appellant's claims concerning his illegal departure from Sri Lanka.

73    The appellant relies on ABA15 as authority for the proposition that a finding that there was no intention to inflict harm cannot stand as an independent basis for rejecting the appellant’s claim. In ABA15, Charlesworth J held (at [57]):

The application of the statutory definition to the appellant’s personal circumstances must be assessed by reference to those facts that are capable of bearing on the question of whether the element of “intention” is present in relation to the claimed harm. The likely period of detention is clearly a relevant consideration in making such an assessment: a subjective intention to cause extreme humiliation may be more readily inferred in respect of a lengthy period of incarceration than it might in respect of a relatively brief period.

74    The appellant submits that the IAA was incapable of making any assessment as to intentionality because it failed to appreciate any risk that he might be subjected to a period of incarceration. It would, he contends, be sufficient that, had it formed that appreciation, the IAA might have been led to understand that the appellant could be remanded in prison, and might have found that the period of incarceration would be a few days or a fortnight (or longer, if he were unable to secure bail), and might have then reasoned differently on the question of prison conditions.

75    In ABA15, the IAA had proceeded “on a factual assumption that was not open to it to make in connection with the likely period of the appellant’s incarceration”. In DCP16, by contrast, a finding that detention would only be for “3 to 4 days” was left undisturbed. It was therefore not necessary in DCP16 to consider whether the length of detention may be able to give rise to an inference of intent.

76    In the present appeal, the IAA found separately that the appellant may face possible action under the Sri Lankan Immigrants and Emigrants Act, but that (at [83]):

The evidence does not suggest that the treatment and penalties the applicant may be subject to because of his illegal departure are intended to inflict pain or suffering that could reasonably be regarded as cruel or inhuman in nature, severe pain or suffering, or are intended to cause extreme humiliation, as required in the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment.

77    While it may be the case that, in some situations, the period of detention is a relevant consideration in assessing subjective intention, and it may be the case that in some situations the prison conditions themselves may similarly be a relevant consideration in assessing subjective intention, in this appeal the IAA was separately led to conclude that the requisite intention was not present. It was not necessary for the IAA separately to assess intention in respect of any potential remand period.

78    A similar analysis applies to proposed ground one of the appeal. Had the IAA properly considered the New Information against s 473DD of the Act, and had the IAA had substantively before it the appellant’s information concerning Sri Lankan prison conditions, those general prison conditions could not have changed the IAA’s conclusion that any severe pain or suffering (amounting to cruel or inhuman treatment pursuant s 36(2A)(d) of the Act) or any extreme humiliation (amounting to degrading treatment or punishment pursuant to s 36(2A)(e) of the Act) to which the appellant might be subjected was not treatment to which he would be subjected with an intention sufficient to excite the definition of “significant harm”.

79    It follows that both grounds of appeal must fail (or independently fail) on the basis that the errors alleged were not material.

Disposition

80    The application for leave to rely on new grounds of appeal as set out in the affidavit sworn by Ms Psihogios should and will be granted. The resultant grounds of appeal all fail and, for that reason, the appeal will be dismissed. There is no reason why the usual order for costs ought not to be made and it will be.

Associate:

Dated:    8 December 2023