Federal Court of Australia

DKA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1639

ORDERS

THE COURT ORDERS THAT:

1.    The application to file the proposed Further Amended Notice of Appeal be refused.

2.    The appeal be dismissed.

3.    The Appellant pay the First Respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

PERRAM J:

1    This appeal is concerned with the refusal of a protection visa. The Appellant is a citizen of Sri Lanka. He arrived in Australia on 4 November 2012 and was held in immigration detention until May 2013 before being released on a Bridging Visa E. Because he entered Australia at a port which was outside the migration zone and did so without holding a visa the Appellant was not entitled to apply for a visa unless and until such time as the Minister determined that he should be permitted to make such an application. A determination to that effect was made towards the end of 2015. On 14 July 2016 the Appellant applied for a Safe Haven Enterprise Visa (a ‘SHEV’) which is a species of protection visa. The basis of the claim for protection was that he was of Tamil ethnicity and feared persecution by the Sri Lankan authorities who would regard him as being associated with the Liberation Tigers of Tamil Eelam (the ‘LTTE’), a separatist political movement which had agitated for a Tamil homeland.

2    The delegate who dealt with the application refused to grant the Appellant a SHEV. Since the Appellant was an unauthorised maritime arrival, the matter was then automatically referred to the Immigration Assessment Authority (the ‘Authority’) for review under its attenuated procedures pursuant to Part 7AA of the Migration Act 1958 (Cth). The Authority affirmed the delegate’s conclusion.

3    The central issue in this appeal is whether two claims made to the Authority were made to the delegate. If the two claims were not made to the delegate then they were ‘new information’ before the Authority and it was not authorised to consider them unless, inter alia, there were ‘exceptional circumstances’: s 473DD(a). The two claims were that:

(a)    the Appellant’s two brothers had served with the intelligence unit of the LTTE; and

(b)    the Appellant had helped his brothers ‘in this matter’.

4    The Authority concluded that the two claims had not been made to the delegate and were thus new information it could not consider unless there were exceptional circumstances. It concluded that there were no exceptional circumstances.

5    In the then Federal Circuit Court the Appellant challenged both of these conclusions. The challenge to the first was that the material before the delegate showed that the claims had been made and hence were not new before the Authority. In the alternative, the Appellant submitted that if the claims were indeed new then the Authority had erred in its assessment of whether there were exceptional circumstances. The primary judge rejected both of these contentions.

Were the two claims new information?

6    Whether the claims made to the Authority were ‘new information’ within the meaning of Part 7AA turns, in this case, upon whether the claims were provided to the delegate before the delegate made the decision to refuse the visa: s 473DC(1)(a). The primary judge correctly identified that this was a factual issue which went to the Authority’s jurisdiction and hence was open to be considered directly by a court of judicial review.

7    The evidence about what took place before the delegate consists of three documents:

(a)    a form entitled ‘Irregular Maritime Arrival Entry Interview’ signed by the Appellant on 16 January 2013 which was in the possession of the delegate;

(b)    an application for a SHEV signed by the Appellant on 11 July 2016 which included a detailed statement of his claims which was in the possession of the delegate; and

(c)    a partial transcript of the interview conducted by the delegate with the Appellant on 17 July 2017 which is annexed to an affidavit of a Tamil interpreter, Mr Chelliah.

8    The transcript in (c) was not in the possession of the delegate although I would infer that the delegate was aware of its contents since she conducted the interview. Neither the Authority nor the Court below had the benefit of the transcript which was prepared after the present appeal was filed.

The Irregular Maritime Arrival Entry Interview form signed on 16 January 2013

9    It is apparent that this form was filled out for the Appellant by somebody, probably the interviewing officer, following the interview. That this is so may be inferred from two facts. First, the answers which have been included in the form record both the questions asked by the interviewer and the answers given by the Appellant in a verbatim fashion. It is unlikely that the Appellant would have been able, even if he were fluent in English, to recall the questions and answers in this verbatim form. Secondly, the Appellant was assisted by an interpreter (according to the form) and this is inconsistent with the Appellant directly putting the answers in English into the form himself, still less setting out the questions he had been asked. However, it was not suggested that what appears in the form is inaccurate and it may be inferred that the statements which the form attributes to the Appellant were made by him. I draw that inference.

10    The relevant extract for the purposes of this appeal is repeated in several parts of the form but only its first appearance need be set out. It is as follows:

you said before your brothers were arrested by the army, why was that? they arrested him and keep him in jail for 2 years and hang them up side down. which brothers? [Redacted] and [Redacted]. why were they arrested? they were suspected LTTE. were they LTTE? we do not know but they were not with us. are you telling me that you do not know whether your brothers are LTTE or not? we know they were in LTTE but when they come home they do not bring weapons or anything, they have even asked me come and join but i did not go. when did they join the LTTE? 1991. when were they arrested? 1996. when were they released? [Redacted] was released in 1997 to red cross and the other we can not trace him only after 4 years we found out that he is India. what ranks were they in the LTTE? they will not tell us what they do or their rank or anything like that.

11    I would infer from this that the Appellant told the interviewer that he was not a member of the LTTE but that his brothers were. It is not open to infer from this that the Appellant told the interviewer either that his brothers served with the LTTE intelligence unit or that he had helped them in doing so.

The SHEV application dated 11 July 2016

12    Attached to the Appellant’s SHEV application was a formal statement of claims which it may be inferred was prepared with the assistance of someone familiar with the principles governing the grant of protection visas. The relevant portions are as follows:

    ‘I am not sure when my brothers joined the LTTE, but it could have been 1990 or 1991.’

    ‘They questioned me on whether I was with the LTTE, and where were my brothers. I said that my brothers had been caught, and I did not know where they were. I also said that I did not have anything to do with the LTTE, as I was farming, and helping my family out.’

    ‘I told them that they [the brothers] were caught, and taken away, and I do not know what happened to them.’

    ‘I was feeling very scared that the same things that had happened to my brothers would happen to me.’

13    It is not open to infer from this evidence that the Appellant raised any claim that his brothers had served with the LTTE intelligence unit or that he had helped them in that regard.

The partial transcript of the interview conducted on 17 July 2017

14    The interview was conducted with the benefit of an interpreter. The appeal papers do not include a transcript of the interview. The Appellant obtained a recording of the interview and his solicitor had a Mr Chelliah, who is fluent in Tamil, transcribe a portion of it. The resulting transcript suggests that during the interview the Appellant was asked about his brothers and their relationship with the LTTE. He gave this answer:

Interpreter:    Yes, they did work for them. [clarifies with Applicant in Tamil] I don’t understand [responds to Case officer in English]. Okay, you know, whenever there was a fight, they would deliver food and, you know, do the necessary things for the fighters. Yes, so there were some informants, we informed the authorities about the informant.

15    From this it is open to infer that the Appellant told the delegate that his brothers delivered food to LTTE fighters and that both the brothers and the Appellant had informed the LTTE authorities about an informant. I draw that inference.

16    Later in the transcript this exchange occurred:

Case officer:    So, but did they formally work for the LTTE, did they have, like an LTTE name?

Interpreter:    We didn’t know about their involvement, but we know they were in LTTE, but we don’t know whether they had a rag in LTTE, or they were spy for LTTE, we don’t know anything about it.

Case officer:    Why not?

Interpreter:     Can I clarify this Marika [responds to Case officer in English]? Okay, they were like supporters for LTTE, they would go to the LTTE base and then they would come back. Then they were providing information for LTTE.

17    It is unclear what the import of ‘rag’ is. I would infer from this exchange that the Appellant told the delegate that his brothers were with the LTTE but he did not know what they did for the organisation and, in particular, he did know whether they spied for it. I would also infer that he told the delegate that the brothers would go to the LTTE base to provide information to the LTTE.

18    Later in the transcript this exchange occurred:

Case officer:    And why do you think you will be harmed or targeted if you were returned?

Interpreter:    Yes, because of my brother’s involvement, many like, the village people, public, everyone knows that they, they were supporters of LTTE, and they had involvement in LTTE. My brother was like, recruiting members for LTTE as well.

19    It may be inferred from this that the Appellant told the delegate that his brothers were involved in the LTTE and that this involvement included recruiting persons to the LTTE. Later in the transcript this exchange occurred:

Case officer:    You don’t know what your brothers’ involvement in the LTTE were? You can’t even tell me if they were high level or if they were members.

Interpreter:    I don’t what sort of involvement my brothers had, whether they had weapons or they were like protecting the weapons, or, I don’t what they did.

20    It may be inferred from this that the Appellant told the delegate that he did not know what his brothers did with the LTTE.

21    The pertinent parts of the transcript therefore reveal that the Appellant told the delegate that:

(a)    his brothers took food to LTTE fighters;

(b)    he and his brothers informed the LTTE authorities of an informant;

(c)    his brothers went to the LTTE base and provided information to the LTTE;

(d)    he did not know whether his brothers were spying for the LTTE; and

(e)    his brothers were recruiting for the LTTE.

22    Points (a), (d) and (e) are not rationally capable of supporting an inference that the Appellant claimed before the delegate that his brothers were in the LTTE intelligence unit. Propositions (b) and (c) could support an inference that the Appellant claimed that his brothers provided information to the LTTE including information about an informant.

23    It is possible, perhaps, to see the brothers as having been involved in the provision of intelligence to the LTTE. It is even possible to accept that in matters of intelligence precisely where the dividing line between intelligence assets and intelligence agents is to be drawn may be indistinct. Even accepting this to be so, however, I do not think the above evidence can sustain an inference that the Appellant claimed before the delegate that his brothers worked for the LTTE intelligence unit. The short of the matter is that he never said that and indeed the only thing he said clearly was that he did not know what they had done for the LTTE. Further, any inference which might be drawn from (a)-(c) and (e) must be consistent with (d). In (d), the Appellant explicitly told the delegate that he did not know whether his brothers were spying for the LTTE. As I have said, I would not infer from (a)-(c) and (e) that the Appellant told the delegate that his brothers worked for the LLTE intelligence unit. However, even if such an inference were open, it could not be drawn where the statement in (d) was made. The Appellant cannot have claimed both that his brothers were with the LTTE intelligence unit and that he did not know whether they were spying for the LTTE.

24    Thus, I do not accept that the evidence of what occurred before the delegate can sustain an inference that the Appellant advanced to the delegate a claim that his brothers were in the LTTE intelligence unit. It follows that it also cannot sustain an inference that he told the delegate that he had assisted them in relation to those activities. It could support an inference that he had supported his brothers in other ways but the claim under consideration is that he supported his brothers in their work for the LTTE intelligence unit.

25    The Appellant also submitted that the Authority had mishandled the matter because it had proceeded to consider the veracity of the two claims when all that it was required to do, at this stage, was to consider whether the claims constituted new information. It is true that the Authority regarded the two claims as an ‘embellishment’ of the Appellant’s earlier claims and that it is open from this to infer that it was sceptical of them. It is also true that the Authority had no need to consider whether the two claims were correct. However, none of this matters. The only issue is whether on the evidence before the delegate the two claims were made. The jurisdiction of the Authority in this respect is not affected by anything it did, or did not do, and turns only on what happened before the delegate.

26    This argument was pursued in support of Ground 1A of a proposed further amended notice of appeal. The argument run in the Court below was that the jurisdictional fact was not established. The trial judge rejected this argument on the facts (which did not include the partial transcript of the interview). In this Court, Ground 1A purported to raise the jurisdictional fact argument again but the terms in which it was drawn revealed that it concealed a large number of other challenges to the Authority’s conclusion that the claim had not been raised before the delegate. Thus, for example, particular (i) was to the effect that the Authority had erred by failing ‘to consider all claims, including claims subsequently rejected or read down, to determine whether the previous claims concerning the Appellant’s brothers roles with the LTTE were of the same nature as LTTE intelligence work’.

27    This is misconceived. In a jurisdictional fact argument, the question of what the Authority thought or did has no relevance. The only question is whether the judicial review court thinks that the evidence before the decision maker either did or did not make good the jurisdictional fact. This also explains why the fact that the Authority did not have the transcript is irrelevant. Each of the particulars to proposed Ground 1A either suffers from this misconception or is incomprehensible or, in one case, is about the Court below. Leaving aside the drafting of the particulars to proposed Ground 1A and treating the ground as the jurisdictional fact argument to which I have referred, it is evident that the ground cannot be made good.

28    The appeal was initially listed for hearing on the afternoon of 26 July 2022. Less than an hour before the hearing the Appellant’s solicitor, Mr Taylor, filed an application seeking to amend the notice of appeal and also to rely upon fresh evidence. The hearing of that application occupied the whole afternoon. The application was dismissed with costs: DKA18 v Minister for Immigration, Citizenship and Multicultural Affairs (Amended Notice of Appeal) [2022] FCA 953. The matter was then listed for a second hearing on 28 February 2023. At the commencement of that hearing Mr Taylor again sought to amend the notice of appeal to raise an amended form of Ground 1, a new Ground 1A and an amended form of Ground 2. This was despite Mr Taylor having agreed at the first hearing that the appeal would proceed on the form of the notice of appeal on the Court file.

29    At the second hearing, I refused the amendment application in relation to Ground 1 and indicated that I would deal with the new Ground 1A and the amended version of Ground 2 in the substantive reasons: DKA18 v Minister for Immigration, Citizenship and Multicultural Affairs (Second Amendment Application) [2023] FCA 157.

30    Having considered the matter as one of substance I am not persuaded that Ground 1A has any prospects of success. I would therefore reject the interlocutory application to amend the notice of appeal in relation to Ground 1A. The transcript to which I have referred was not in evidence before the trial judge and was received in this Court on the amendment application to raise Ground 1A. Once that ground is rejected, the transcript has no relevance and I would reject the affidavit of Mr Chelliah on the hearing of the appeal.

Did the Authority err in concluding that there were no exceptional circumstances?

31    Next the Appellant challenged the Authority’s conclusion that there were no exceptional circumstances justifying its consideration of the new information. The manner in which the Appellant pursued this argument was diffuse to say the least. However, stripped bare, the point is threefold: (a) the Appellant had an explanation for why he had not advanced to the delegate his claim about his brothers’ involvement in the LTTE intelligence unit or his claim that he had helped them in that regard; (b) the Authority rejected that explanation; and (c) its reasoning in rejecting the claims involved jurisdictional error.

32    The explanation for the Appellant’s failure to advance these claims to the delegate was provided to the Authority in a written submission. It was that the Appellant was concerned that if he told the delegate that his brothers had worked for the LTTE intelligence unit and that he had helped them in that regard then he would be exposed to the risk of being returned to Sri Lanka where he would face a serious risk of harm at the hands of the Sri Lankan authorities or, if unable to be returned, would be indefinitely detained in Australia in immigration detention. Although not articulated, as I understood the argument, the point was that telling the delegate of the two claims posed a risk of the information becoming known to the Sri Lankan authorities. If that occurred Australia would either comply with its non-refoulement obligations by keeping the Appellant in indefinite detention or it would dishonour its non-refoulement obligations by returning him to Sri Lanka where he faced a serious risk of harm.

33    The Authority was not disposed to accept this submission. It rejected it in these terms:

I consider that the claim that they served in the LTTE intelligence unit is a new and embellished description of the type of role he previously claimed for his brothers and I consider it is new information. There is no explanation of why the applicant did not raise the claim of his own assistance to his brothers’ LTTE service before the delegate’s decision. It contradicts his evidence in the SHEV interview to the delegate that he had no involvement at all in the LTTE. He explained that he had not previously provided the new information relating to his brothers’ links to the LTTE due to fear of indefinite detention in Australia, fear of being returned to Sri Lanka and that the authorities there would get to know. The applicant was assisted with professional advice and preparation of his protection claims in his SHEV application and Statement of Claims; and he was fully advised by the delegate at the commencement of the SHEV interview that he should fully raise all of his claims for protection and that the interview was his opportunity to do so as he may not get a further chance to do so once a decision was made; and further he was advised of the privacy laws that applied to him. I do not accept that the applicant was afraid to disclose his brother’s LTTE links as he had already described support they had given to the LTTE and had consistently maintained that he knew nothing more than that. That this new information is now provided after the delegate’s findings that the two brothers were LTTE supporters and not formal members, and her refusal of the visa application, together with its inconsistency with the evidence maintained by the applicant causes me serious concern that the information about the brothers and about the applicant is capable of being believed. The applicant has not satisfied me that the requirements of either s.473DD(b)(i) or (ii) are met. Further, in all the circumstances I am not satisfied that any exceptional circumstances exist that would justify considering the new information.

34    The challenge for the Appellant is to identify any jurisdictional error in this conclusion. Leaving to one side the form in which this point was pursued at the hearing, I do not think that such an error may be discerned. I accept that the Authority’s reasoning does contain an internal inconsistency for it stated that there was no explanation for why the claims were not pursued before the delegate (‘There is no explanation of why the applicant did not raise the claim…’) before concluding that the explanation ought not to be accepted (‘He explained that he had not previously provided the new information relating to his brothers’ links to the LTTE due to fear of indefinite detention…’). However, despite that contradiction, it is apparent that the Authority did consider and then reject the explanation. Its reasoning for rejecting the Appellant’s explanation was fivefold:

(a)    he had been professionally advised;

(b)    he had been told by the delegate that he should raise all of his claims as he might not be able to raise them later;

(c)    he had been told of the privacy laws that applied to him;

(d)    he did tell the delegate that his brothers were members of the LTTE and this was inconsistent with his present assertion that he did not want to tell the delegate about his or his brothers’ connection with the LTTE; and

(e)    he had a motive now to make a claim enhancing his brothers’ involvement with the LTTE after the delegate’s conclusion that they were merely supporters rather than members of that organisation.

35    This reasoning is not unreasonable or irrational in the requisite sense; that is to say, it has an evident and intelligible basis: cf. Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. I am likewise unable to discern that it involved a denial of procedural fairness. The Authority was entitled to reject the Appellant’s explanation. In doing so it did not act on information adverse to the Appellant to which he had been given no opportunity to respond. It was not obliged to give the Appellant an opportunity to comment on its own process of reasoning: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [29] and [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. I am also unable to discern the taking into account of irrelevant considerations or the failure to take into account relevant considerations.

36    Thus, approached as a matter of substance, I do not think that any challenge to the Authority’s conclusion that exceptional circumstances were not present can succeed.

37    Turning then to the basis on which the matter was pursued in this Court, by proposed Ground 2 it is said that the trial judge erred in failing to find that the Authority ‘applied an unduly narrow construction of the tests in s 473DD for determination of whether to consider the new information concerning his brothers’ roles in the LTTE intelligence unit and his own role in assisting them’. In its reasons, the Authority did not seek to parse the expression ‘exceptional circumstances’. Necessarily, the argument therefore turns on the manner in which the expression was applied.

38    Proposed Ground 2 does not identify the unduly narrow construction said to have been applied by the Authority and the reader is left to ascertain its nature from the eight particulars which are appended to the proposed ground. The eighth of these (particular (x)) does not contain an allegation about what the Authority did but is instead an allegation about what the Court below did. As such it is not rationally capable of advancing the Appellant’s argument that the Authority misconstrued ‘exceptional circumstances’ and may be disregarded.

39    Turning to the remaining seven particulars, each is an allegation that the Authority either did or did not do something. For any of these to sustain the Appellant’s misconstruction allegation they must bear upon that issue. None does. The first (particular (i)) is a contention that the Authority failed to assess the claim that the Appellant’s brothers had worked for the LTTE intelligence unit in light of all of the other critical claims he had made. It may be assumed, for the sake of argument, that the Authority did not assess all of the other critical claims in reaching the conclusion it did on ‘exceptional circumstances’. It does not follow from this that the Authority misconstrued ‘exceptional circumstances’ but only that in reaching its conclusion it did not take into account certain matters. If those matters were mandatory relevant considerations for the purposes of assessing ‘exceptional circumstances’ then this allegation could form the basis of a contention that the Authority had made a jurisdictional error by failing to take them into account. This, however, is not the allegation. I am unable to understand how the failure of the Authority to take into account these matters can show that it narrowly construed ‘exceptional circumstances’.

40    The second allegation (particular (ii)) is that the Authority unreasonably expected the Appellant to provide to the delegate his claims about his brothers’ involvement in the LTTE intelligence unit. I do not see how this bears on the Authority’s construction of ‘exceptional circumstances’.

41    The third matter (particular (iii)) is that the Authority was bound to take into account that the Appellant was a survivor of personal torture and family persecution which affected his subjective fears but failed to do so. I do not see how a failure to take this matter into account can reveal anything about the Authority’s approach to the meaning of ‘exceptional circumstances’.

42    The fourth matter (particular (iv)) does not contain a particular but is instead a quote from the Authority’s reasons which is referred to in the fifth matter. By itself it is not capable of throwing light on the approach the Authority took to the meaning of ‘exceptional circumstances’.

43    The fifth matter (particular (v)) when read with (iv) is a complaint that the Authority failed intellectually to engage with the Appellant’s explanation for why he had not informed the delegate of the fact that his brothers had worked in the LTTE intelligence unit. Again, this does not make good a contention that the Authority misconstrued ‘exceptional circumstances’.

44    The sixth matter (particular (viii)) is as follows:

The provision of the information concerning his brother’s roles during their service in the LTTE did not indicate a withdrawal of the claim to fear harm from the Sri Lankan in connection with them coming to know about his claims.

45    I do not understand this. The fragments of it which I can understand do not bear on an argument about the construction of ‘exceptional circumstances’.

46    The seventh matter (particular (ix)) is as follows:

The statement by the Authority that it did not believe that he was afraid to give this information was (1) a conclusion without a reason; and (2) The Authority ignored the applicant’s Appellant’s real subjective fear of harm from the Sri Lankan authorities if this information came to their attention given the harm to which he had previously been subject and of which he was witness and aware.

47    The allegation appears to be that the Authority failed to take the Appellant’s genuinely held fear into account. Again, I do not see how this bears on the suggestion that the Authority misconstrued ‘exceptional circumstances’.

48    The argument considered by the trial judge was recorded by him at [22] as being ‘essentially, that the explanation [the Appellant] expressly advanced as to the late provision of the new information as to his brothers’ links was equally applicable to the new information as to the [Appellant’s] own LTTE assistance’. That is not the collection of arguments contained in the particulars to proposed Ground 2. Thus, leaving aside the fact that the particulars cannot support the allegation of misconstruction, they suffer from the further deficiency of not having been raised at first instance.

49    I decline to grant the Appellant leave to amend his notice of appeal to raise proposed Ground 2. It cannot succeed and was not raised at first instance.

Conclusions

50    I reject the Appellant’s application to further amend his notice of appeal. That leaves in place the original amended notice of appeal. Ground 1 of that notice of appeal alleges that the Secretary failed to provide to the Authority ‘other material’ under s 473CB(1)(c). No such argument was pursued before the trial judge. It should not be entertained on appeal. Ground 2 was an earlier iteration of proposed Ground 2 which I have rejected. It should be rejected for largely the same reason that it fails to show anything about the manner in which the Authority approached the construction of ‘exceptional circumstances’. There are no other grounds.

51    The appeal should be dismissed. The Appellant must pay the Minister’s costs as taxed or agreed.

Associate:

Dated:    21 December 2023