Federal Court of Australia

DGD17 v Minister for Immigration and Multicultural Affairs [2025] FCA 383

ORDERS

THE COURT ORDERS THAT:

1.    The citation of the first respondent be changed to Minister for Immigration and Multicultural Affairs.

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The appellant is a Sri Lankan Tamil who arrived in Australia by boat in November 2012 as an “unauthorised maritime arrival”.

2    In February 2016, the appellant made an application for a Safe Haven Enterprise (subclass 790) visa, a form of protection visa.

3    In November 2016, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs for the purposes of s 65 of the Migration Act 1958 (Cth) refused the appellant’s application for a protection visa. As a “fast track reviewable decision” under Pt 7AA of the Act (as it then was), the refusal decision was automatically referred to the Immigration Assessment Authority for review.

4    In July 2017, the Authority affirmed the decision of the delegate not to grant the appellant a protection visa.

5    Later that same month, the appellant sought judicial review of the Authority’s decision in the then-Federal Circuit Court of Australia, subsequently the Federal Circuit and Family Court of Australia (Division 2). The appellant was represented by counsel at the hearing and raised a single ground of review. His application for judicial review was dismissed in August 2022.

6    The appellant, unrepresented, initially filed a notice of appeal in this Court on 6 September 2022. This matter formed part of a cohort of appeals which were delayed by the COVID-19 pandemic. The matter was docketed to me in December 2024 and listed for hearing on 5 March 2025 in Melbourne.

7    At the hearing on 5 March 2025, a lawyer, Mr Raveendran of Ravi James Lawyers, appeared for the appellant on a limited basis to seek a short adjournment, explaining that his firm had been contacted by the appellant only the day prior and that he wished to seek counsel’s advice on the appellant’s prospects of success before committing to continuing the appeal. The adjournment was opposed by the first respondent (the Minister), the second respondent (the Authority) having in customary fashion filed a submitting notice save as to costs.

8    After hearing Mr Raveendran’s application, with some hesitation and recognising the fundamental importance of the case to the appellant given how it may have the effect of determining his status in Australia, I granted an adjournment. I made orders listing the hearing for 16 April 2025, providing a timetable for any amended notice of appeal and submissions to be filed by the appellant, and for any further submissions to be filed by the Minister. A condition of the grant of the adjournment was that the appeal would be heard in Sydney but that the parties could appear remotely from the court in Melbourne.

New grounds on appeal

9    Now represented, the appellant has filed an amended notice of appeal which abandons the previous ground of appeal and advances three new grounds of appeal, none of which was advanced before the primary judge. It is common ground that the appellant requires leave to advance the new grounds.

10    The Minister opposes the grant of leave to advance any of the three new grounds of appeal. The Minister submits that the appellant has not provided any explanation whatsoever, let alone an “adequate” explanation for the new grounds (VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48] per Kiefel, Weinberg and Stone JJ), and that the appellant’s change in representation does not suffice on its own as an explanation (relying on AYJ15 v Minister for Immigration and Border Protection [2016] FCA 863 at [17] per Reeves J and BXC15 v Minister for Immigration and Border Protection [2017] FCA 682 at [23] per Davies J).

11    Further, the Minister submits that none of the grounds has sufficient merit to warrant a grant of leave (VUAX at [48] per Kiefel, Weinberg and Stone JJ). It is common ground that if the new grounds have insufficient prospects of success, then leave to advance them should be refused.

12    The principle governing the Court’s appellate jurisdiction is that appeals proceed by way of rehearing: Huynh v Minister for Immigration and Border Protection [2020] FCAFC 153; 283 FCR 451 at [57] per Reeves, Bromwich and Anderson JJ. Other than in the most exceptional of cases, parties are bound by the conduct of their case at trial, as explained in Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7-8. Ordinarily, the public interest in the finality of litigation would be undermined by allowing a new point to be argued on appeal that the party had not put below, and this is so even if it concerns only a question of law on uncontested facts that would not have changed the conduct of the trial. An appellate court will only permit such a new point to be raised if the interests of justice so require: Coulton v Holcombe at 8; O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319 per Mason J with whom the rest of the Court agreed. See too Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497.

13    In the context of a case such as the present, the governing consideration of the interests of justice will turn principally on whether the proposed new ground has sufficient merit to warrant leave being granted: BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74 at [51] per Allsop CJ, Kerr and Mortimer JJ. The inquiry can be framed as whether the point “clearly has merit”: VUAX at [48].

14    For the reasons that follow, I am not persuaded that the interests of justice require the grant of leave to rely on the amended grounds of appeal because none of them clearly has merit.

15    The proposed grounds of appeal are put as follows:

1.    The decision of the Second Respondent (“the Authority”) was affected by jurisdictional error in that it did not consider relevant considerations.

Particulars

a.    The Authority accepted that the Appellant had suffered some questioning and abuse by the Sri Lankan CID [Criminal Investigation Division] or other forces (AB 229-230, [26] – [30]), but did not consider whether his past harm and the risk of him suffering future harm may be increased by his prominence as having been the secretary of the village council. (AB 12, Q. 4.)

b.    The Authority accepted that the Appellant might undergo some scrutiny because of scarring (AB 232, [37]), and that on return as an illegal emigrant he may be questioned and there be contact with the police in his home area. (AB 233, [41]), and that he may be kept for a brief time in detention or prison. (AB 233-234, [45]-[46]) It noted the assessment by the Australian Department of Foreign Affairs and Trade (“DFAT”) of the risk of torture as “low” (AB 233, [40]), but did not consider as required by law all the information before it including the information in the 2017 DFAT report relating to the incidence of torture and serious abuse of human rights in Sri Lanka. (DFAT report, 4.12-4.22; cf Authority’s reasons,

c.    Further or in the alternative to Particular (a), the Authority did not consider the risk of harm to the Appellant for reason of him simply being in detention or prison on return and under the control of the police of other Sri Lankan authorities during questioning and investigation.

2.    The decision of the Tribunal was affected by jurisdictional error in that it erred in interpreting or applying the law.

Particulars

a.    The Tribunal erred in interpreting or applying section 473DC of the Migration Act 1958 (“the Act”) in that it did not seek new information at interview or otherwise in relation to the question whether the Appellant had been beaten many times or only once. (AB 229, [24]-[25]).

3.    The decision of the Authority was affected by jurisdictional error in that it was legally unreasonable.

Particulars

a.    Having accepted the Appellant as truthful and reliable in much of his evidence, the Authority had no logical basis not to accept that the Appellant had suffered mistreatment as frequently and severely as he claimed. (AB 229, [25])

b.    Further or in the alternative to Particular (a) to this Ground, the Authority had no logical basis not to accept that the Appellant had an adverse profile with the Sri Lankan authorities which had led to him suffering mistreatment. (AB 229-230, [25]-[26])

c.    Further or in the alternative to Particulars (a) and (b) to this Ground, the Authority had no logical basis not to accept that the Sri Lankan authorities had been asking about the Appellant during visits to his family home. (AB 230, [27])

d.    Further or in the alternative to Particulars (b) and (c) to Ground 1, the Authority in forming or not forming the state of satisfaction under section 65 of the Act as to the criteria under section 36(2)(a) and section 36(2)(aa) of the Act, and having before it information including the 2016 UNCAT report and the 2017 DFAT report was legally unreasonable not to find a real chance of the Appellant suffering serious or significant harm while in detention or prison on return and under the control of the police of other Sri Lankan authorities during questioning and investigation. (AB 233- 235, [41]-[46], [55])

16    Before turning to deal with the threshold issue of whether each or any of the grounds has clear merit such as to warrant a grant of leave, it is necessary to consider another procedural question.

New evidence on appeal

17    As is evident from the references in the proposed grounds of appeal, the appellant also seeks to rely on a Sri Lanka Country Information Report dated 24 January 2017 issued by the Australian Government Department of Foreign Affairs and Trade (DFAT Report). The appellant seeks to tender this report in the appeal notwithstanding that it was not included in the court book or other material before the primary judge.

18    The DFAT report was not before the delegate as it was published two months after the delegate’s decision. The Authority had regard to the DFAT Report as “new information” under s 473DC of the Migration Act having been satisfied that there were exceptional circumstances for doing so as required by s 473DD. The appellant submits that a refusal to grant leave to adduce the report would cause substantial prejudice to the appellant with no corresponding prejudice to the Minister.

19    The Minister opposes leave being granted to tender the new material. The Minister argues that the appellant has not attempted to demonstrate that the DFAT report could not have been adduced before the primary judge, nor shown that the DFAT report is of such a nature “that very probably the result would have been different” had it been before the trial judge, and as such fails to satisfy either condition for the Court to receive further evidence on appeal as explained by the Full Court in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [43] per Beaumont, Lindgren and Tamberlin JJ (see also Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13; 292 FCR 155 at [8] per Davies, Rangiah and Cheeseman JJ).

20    The Minister prepared and filed the court book before the primary judge but inexplicably omitted the DFAT Report, which was obviously an important document forming part of the record before the Authority as evidenced by the Authority’s many references to it in its reasons. Of course, the appellant’s former representatives could have included it in a supplementary court book, or otherwise tendered it. However, given the primary responsibility for the preparation of the court book and the lack of prejudice, I do not see any reason not to allow the DFAT Report to be tendered on appeal if leave were granted to advance the grounds of appeal that rely on the DFAT Report, ie proposed appeal grounds 1(b) and 3(d). However, since, as mentioned, I am not persuaded that there should be leave to advance those proposed appeal grounds, leave to adduce the DFAT Report on appeal should be refused.

Proposed ground 1

21    By his proposed ground 1, the appellant seeks to argue that the Authority’s decision is affected by jurisdictional error by failing to consider three particularised relevant considerations.

22    Particular (a) of ground 1 asserts that the Authority failed to consider the appellant’s “prominence as having been the secretary of the village council” as a factor which increased his risk of harm from Sri Lankan forces.

23    In his entry interview upon arrival in Australia in January 2013, the appellant stated that he was the “secretary of the village council – village committee” in response to the question of whether he was a member of any particular social or religious group. This statement was noted in the decision record of the delegate but not otherwise addressed in the delegate’s determination. The appellant did not claim in his visa application that he would likely suffer harm if returned to Sri Lanka because of his former role as secretary of the village council.

24    Also, in submissions by the appellant’s lawyer to the Authority, the appellant did not attribute any fear of harm to his former role as secretary of the village council. The submission identified various reasons why the appellant would attract the attention of the Sri Lankan authorities and thereby be at risk of harm, none of which included any mention of his former role as secretary of the village council.

25    As submitted by the Minister, if the claim relating to the appellant’s position was genuinely advanced but overlooked by the delegate, one might have expected that the appellant would have brought this omission to the attention of the Authority. Having failed to do so, the appellant cannot now claim that the matter was a mandatory relevant consideration; the appellant did not rely on that claim to fear harm before the Authority, so the Authority made no error in not dealing with it. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [25]. In the result, particular (a) has no real merit.

26    Particular (b) of ground 1 asserts that the Authority “did not consider as required by law all the information before it including the information in the 2017 DFAT report relating to the incidence of torture and serious abuse of human rights in Sri Lanka.”

27    Examination of the Authority’s reasons shows that the Authority had regard to matters in the DFAT Report, including expressly so on numerous occasions. In particular, the Authority refers specifically to parts of the DFAT Report dealing with the incidence of torture and mistreatment for returning Tamils at [40]-[41] of its reasons.

28    Although the Authority did not refer expressly to some of the individual paragraphs cited by the appellant in his written submissions in this Court, the substantive matter raised by the appellant about the incidence of torture and mistreatment of returning Tamils was addressed in depth in the Authority’s reasoning. Further, DFAT’s assessment as recorded in the report was that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankan nationals face a low risk of mistreatment that can amount to torture (at [4.20]) and that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act (at [4.22]) (which would include the appellant). The Authority’s conclusions are in line with those assessments.

29    In the result, particular (b) of ground 1 has no real merit.

30    Finally, particular (c) of ground 1 asserts that the Authority did not consider the risk of harm to the appellant occurring simply by him being in detention or prison on return, and under control of the police or other Sri Lankan authorities during questioning and investigation.

31    In fact, the Authority squarely dealt with exactly what could be expected to occur on the appellant’s return to Sri Lanka and noted and addressed each of the matters highlighted in proposed ground 1(c). I refer in particular to [40]-[46] of the Authority’s reasons. That is a complete answer to particular (c).

32    In the result, none of the considerations particularised in proposed ground 1 have any real merit. Leave to advance proposed ground 1 must be refused.

Proposed ground 2

33    By his proposed ground 2, the appellant asserts that the Authority erred by not seeking new information under s 473DC of the Act in relation to the question of whether the appellant had been beaten many times or only once. That section provided that the Authority may get any documents or information that were not before the Minister when the Minister made the decision if the Authority considers the information to be relevant (s 473DC(1)). It also provided that the 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 (s 473DC(2)).

34    The appellant’s submission is that the Authority noted that the evidence of the appellant was not clear about how many times he was beaten and that, acting reasonably, it ought to have sought new information “to bridge this gap in critical information”. The appellant refers to ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439. However, that was a very different case. There, the delegate had believed the appellant on the point in question but the Authority, without itself having the benefit of interviewing the appellant, disbelieved the appellant finding that on listening to the audio recording of his interview by the delegate his evidence was generally lacking in detail and that at times he sounded vague and hesitant. In those circumstances, it was held that it was legally unreasonable for the Authority not to invite the appellant to a further interview in order to gauge his demeanour for itself before deciding to reject the account given by him in the audio recorded interview that had been accepted by the delegate. It was that “informational gap” that an interview would have filled.

35    In the present matter, the delegate did not accept the appellant’s evidence that he was beaten and tortured each time the Sri Lankan Army and Criminal Investigation Division came to his house twice per month. The delegate found that to be implausible. The Authority came to the same conclusion although it relied more heavily on the appellant’s own evidence, and in particular inconsistencies in his evidence. No error is revealed in the Authority’s approach; there was no “informational gap”. There are no reasonable prospects that it might be found that the Authority acted unreasonably by not calling the appellant to an interview. The point has no real merit so leave to advance it must be refused.

Proposed ground 3

36    Proposed ground 3 asserts that the Authority was legally unreasonable in certain respects. Reference is made to Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 on the nature of legal unreasonableness, which is a high threshold.

37    By particular (a), the appellant asserts that having accepted him as truthful and reliable in much of his evidence, the Authority had “no logical basis” not to accept that he had suffered mistreatment as frequently and severely as he claimed. However, the Authority’s treatment of this issue is detailed and reasoned. The Authority notes that although the appellant claims to have suffered beatings and torture every time that he signed in at the police station twice per month, he only referred to the one occasion of being beaten when he had failed to sign in. Further, his doctor’s report states that he reported being taken and beaten on only one occasion and that that incident did not involve any questioning. That is a legitimate process of assessment of evidence and credibility and does not meet the asserted threshold of “no logical basis”.

38    By particular (b), the appellant asserts that the Authority had “no logical basis” not to accept that he had an adverse profile with the Sri Lankan authorities which had led to him suffering the mistreatment which the Authority accepted he had suffered. This is said to be especially unreasonable because the Authority accepted that the appellant’s brother was a member of the LTTE and sent to rehabilitation for years and then monitored.

39    However, the Authority found that the serious assault that it accepted that the appellant had suffered was instigated by his failure to attend and sign in at the police station and was not related to any particular suspicion or an adverse security profile other than being recently released from a displaced persons camp. That explains how the Authority found that the appellant had suffered the beating yet “did not have an adverse security profile with the authorities, either from his own real or imputed links to the LTTE, or from his association with his brother”. That is not an illogical process of reasoning.

40    By particular (c), the appellant asserts that the Authority had “no logical basis” not to accept that the Sri Lankan authorities had been asking about the appellant during visits to his family home. The appellant submits that that was an assertion by the Authority on nothing other than an assumption and that it was not a logically probative basis for the finding.

41    The Authority accepted that as a Tamil and a young Tamil male, the appellant experienced harassment and some violence in the past. It accepted that he had a subjective fear of arrest, detention, disappearance and mistreatment at the hands of the Sri Lankan authorities. However, since it found that he did not have an adverse security profile with the authorities, the Authority was not satisfied that the authorities had been asking about him during their compliance visits to the family home in relation to his brother. The assessment of what interest the authorities had shown in the appellant, including whether they asked about him during their visits to the family home, is interrelated with the assessment of whether the appellant had an adverse security profile with the authorities. However, having found that the appellant did not have such a profile based on other evidence and considerations, it is not illogical or irrational for the Authority to have been doubtful that the authorities asked about the appellant when they visited the family home in relation to his brother.

42    By particular (d), the appellant asserts that it was legally unreasonable for the Authority not to find a real chance of him suffering serious or significant harm while in detention or prison on return and under control of the police by the Sri Lankan authorities during questioning and investigation. The appellant relies on the DFAT Report as well as a 2016 United Nations Committee Against Torture report. In that way, this ground overlaps with proposed ground 1(b) which also asserts that the Authority failed to have regard, or adequate regard, to the DFAT Report.

43    The Authority’s reasoning on this point is detailed. The Authority took into account that the appellant had never been charged or convicted of any offence and that although he left Sri Lanka while subject to reporting requirements, there was no evidence before it that indicated that he would be at any increased risk of arrest or detention because of it. The Authority referred to country information which indicated that returned asylum seekers and those with an otherwise low profile were not generally at risk of harm on return to Sri Lanka. There is no real merit in the argument that this process of reasoning is legally unreasonable.

Disposition

44    For those reasons, none of the proposed new grounds of appeal has any real merit. For that reason, and without the need to consider other factors relevant to the grant of leave, leave to advance the proposed new grounds must be refused. As no other ground of appeal was sought to be advanced, the appeal must be dismissed. There is no reason why the costs should not follow the result.

Associate:

Dated:    17 April 2025