AHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FCA 122
•22 February 2023
FEDERAL COURT OF AUSTRALIA
AHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 122
Appeal from: AHL19 v Minister for Immigration and Anor [2019] FCCA 2947 File number: NSD 2070 of 2019 Judgment of: NICHOLAS J Date of judgment: 22 February 2023 Catchwords: MIGRATION – whether Immigration Assessment Authority’s decision not to get new information pursuant to s 473DC of the Migration Act 1958 (Cth) was legally unreasonable – whether primary judge erred in dismissing appellant’s application for judicial review of Authority’s decision Legislation: Migration Act 1958 (Cth) ss 473DC, 473DD and 473FA(1) Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 49 Date of hearing: 28 April 2022 Counsel for the Appellant: Mr DH Godwin Counsel for the First Respondent: Mr T Liu Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 2070 of 2019 BETWEEN: AHL19
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
22 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
BACKGROUND
This is an appeal from a decision of the Federal Circuit Court of Australia (as it then was) of 28 November 2019 dismissing an application for judicial review of a decision of the second respondent (“the Authority”) made on 14 January 2019. The decision of the Authority affirmed a decision of a delegate of the first respondent made on 20 November 2018 not to grant the appellant a Safe Haven Enterprise Visa (“SHEV”).
The appellant is Tamil and a citizen of Sri Lanka. He was invited to apply for a SHEV on 9 September 2016 and lodged his application on 26 May 2017. The appellant’s protection claims were based on his involvement with the Liberation Tigers of Tamil Eelam (“LTTE”), and the LTTE Navy (the “Sea Tigers”). The appellant claimed that his involvement with the LTTE began in 2005, first working in a timber yard and then working for the Sea Tigers, bringing supplies to the boats until September 2007. While the appellant claimed to work for the LTTE, he stated that he was never involved with the LTTE on a political level. He also claimed to have assisted in protecting the Sea Tigers camp during an incident where the Sri Lankan authorities approached the camp. During this incident the appellant claims that there were injuries on both sides. At the time of submitting his application, the appellant claimed that the Sri Lankan authorities had been searching for him for many years and that his wife still heard of people looking for him. The appellant also stated in his application that all of the people that he worked with at the timber yard and navy base had been killed.
The appellant claimed that he left Sri Lanka in June 2008 and went to Saudi Arabia where he stayed until the beginning of 2013. He stated that he returned to Sri Lanka for about a week, then travelled to Singapore and arrived in Australia by boat from Indonesia in May 2013.
The appellant was invited to attend an interview that was held on 6 July 2018. During the interview he raised a further claim, that he purchased motorbikes for the LTTE in his name and that the LTTE paid for this in instalments. The appellant claimed that he was concerned that the LTTE ceased paying for these motorbikes and that because the motorbikes were in his name, if he returned to Sri Lanka he would owe a large amount of money.
The appellant provided detailed submissions to the Department of Home Affairs and Trade (“DFAT”) dated 23 July 2018. The submissions included further details of his protection claims and country information. The submissions criticise the DFAT report on Sri Lanka dated 2018 and highlight other country information including from the United Nations Committee Against Torture. On 25 July 2018 further submissions were made regarding a report released by the United Nations Special Rapporteur on the promotion and protection of human rights while countering terrorism dated 23 July 2018. The report concluded that the Sri Lankan government’s efforts to achieve reform have “ground to a halt”. On 1 November 2018 further information was provided to the Department of Home Affairs regarding political turmoil in Sri Lanka due to the appointment of former President Rajapaksa as Prime Minister. On 20 November 2018 the delegate of the first respondent made the decision refusing the appellant’s application for a SHEV.
THE RELEVANT STATUTORY SCHEME
The nature of the jurisdiction exercised by the Authority was considered in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (“ABT17”). As the plurality (Kiefel CJ, Bell, Gageler and Keane JJ) explained at [5]-[9]:
[5]The nature of the jurisdiction exercised by the Authority when conducting a review of a fast track reviewable decision is settled:
“[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority … is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.”
[6]“Review material”, which the Secretary is obliged in every case to provide to the Authority and which the Authority is obliged in every case to consider in exercising that jurisdiction, comprises material within three categories. The first is a statement concerning the referred decision setting out the findings of fact made by the delegate, referring to the evidence on which those findings were based and giving reasons for the decision. The second is material provided by the referred applicant to the Minister before the delegate made the referred decision. The third is other material in the Secretary’s possession or control considered by the Secretary to be “relevant” to the review in the sense that it is “capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding”.
[7]Conformably with the nature of the jurisdiction to be exercised by the Authority in the conduct of the review, the obligation of the Authority to “consider” the review material provided to it by the Secretary is to “examine the review material … to form and act on its own assessment of the relevance of that material to the review of the referred decision”.
[8]The purpose of obliging the Secretary to provide the review material to the Authority and of obliging the Authority to consider the review material provided to it by the Secretary is evidently to ensure that the Authority, in conducting its de novo consideration of the merits of the referred decision, has and examines for itself the same information that was before the Minister and that was therefore available to be taken into account by the delegate when making the referred decision.
[9]“New information”, which the Authority can only get and consider in the exercise of its specific powers, comprises any communication of “knowledge of facts or circumstances relating to material or documentation of an evidentiary nature” which was not before the Minister when the delegate made the referred decision that the Authority itself considers might be relevant to the review in the sense that it might be capable directly or indirectly of rationally affecting assessment by the Authority of the probability of the existence of some fact about which the Authority might be required to make a finding in determining afresh whether or not to be satisfied that the criteria for the grant of a protection visa have been met.
(footnotes omitted)
Sections 473DC and 473DD of the Migration Act 1958 (Cth) (“the Act”) concern the power of the Authority to “get” and consider new information. These sections 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.
Section 473FA(1) of the Act is also relevant. It provides:
473FA How Immigration Assessment Authority is to exercise its functions
(1)The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).
Note:Under section 473DB the Immigration Assessment Authority is generally required to undertake a review on the papers.
Section 473FA(1) has been described as “a general exhortation”: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [36] per Gageler, Keane, and Nettle JJ. Section 473FA(1) is “facultative rather than restrictive” and reflects “broad legislative objectives”: see Minister for Immigration v Li (2013) 249 CLR 332 (“Li”) at [12] and [15] per French CJ and [96]-[98] per Gageler J (both referring to like provisions in other parts of the Act).
THE IMMIGRATION ASSESSMENT AUTHORITY
The Authority had regard to the material given to it by the Secretary as well as submissions provided to the Authority on 14 December 2018 and 15 December 2018 on behalf of the appellant. The 14 December 2018 submissions provided to the Authority included new country information. The new country information provided was the advanced unedited version of a report on Sri Lanka published by the Committee Against Torture after 30 November 2016 which stated that those with a suspected link to the LTTE, even remote links, have been abducted and subjected to torture.
On 15 December 2018 additional submissions were provided to the Authority which attached further country information, including a Time Magazine article and an International Crisis Group Report both of which discuss the appointment of former President Rajapaksa as Prime Minister. The latter submissions urged the Authority “to obtain/get information from DFAT sources relating to the volatile situation in Sri Lanka at the present time before it makes its decision”.
The appellant did not satisfy the Authority that the new information met the requirements of s 473DD(b). The Authority stated the following in relation to this:
4.The submission includes a reference and a quote from the Advanced Unedited Version of a report on Sri Lanka published by the Committee Against Torture after the 30 November 2016. Attached to the submission is an Advanced Unedited Version of the United Nations Human Rights Council, Report of the Special Rapporteur on the promotion and protection of human rights whilst countering terrorism, dated 23 July 2018. Also attached is a report from the International Crisis Group, Sri Lanka: Stepping Back from a Constitutional Crisis, dated 31 October 2018. Further attached is a Time magazine report related to a march of supporters of Mahinda Rajapaksa – the URL link indicates that this article is dated 6 November 2018. All of this is new information. All of these reports substantially predate the delegate’s decision and no explanation has been provided as to why they could not have been provided to the delegate before he made his decision or why any is credible, personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. I note the applicant was represented at the primary stage and a detailed post-interview submission was made. I am not satisfied that these reports and their contents could not have been provided to the delegate, before he made his decision. Nor am I satisfied that they are credible, personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims.
The appellant does not challenge that aspect of the Authority’s decision. The key paragraph in the Authority’s reasons notes that the Authority decided not to get or request any new information. As to this decision the Authority stated:
7.The submissions urge the IAA to get new information from the Department of Foreign Affairs (DFAT) related to the volatile situation in Sri Lanka at the present time. I have considered this request, but given my consideration of the country information in respect of the applicant’s claims that is set out below and taking into [sic] the IAA’s statutory objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3, I have decided not to get or request any new information from DFAT or any other source.
The Authority accepted that the appellant was closely involved with the LTTE between 2005 and 2007 and carried out various “low-level” support activities for them. The Authority noted that the appellant has not claimed to have been a member of the LTTE or involved with them on a political level. The Authority accepted that the appellant purchased motorbikes on behalf of the LTTE. However, as over a decade has passed since this occurred, the Authority did not accept that there was a real chance the appellant would be subjected to any harm by the sellers of these motorbikes or the Sri Lankan government upon his return.
The Authority referred to a number of incidents which the appellant claimed led him to fear for his life and travel to Saudi Arabia as he believed the Sri Lankan authorities were searching for him. The Authority concluded that the appellant’s fears based on these incidents were highly speculative and that the appellant himself did not claim to have actually seen or been approached by any member of the Sri Lankan authorities. The Authority did not accept that these incidents were evidence that the appellant was of adverse interest to the Sri Lankan authorities or anyone else that ultimately led him to leave Sri Lanka.
The Authority considered that the appellant’s ability to enter Sri Lanka in 2013 without any problems or interrogation strongly indicates that he was not of any adverse interest to the Sri Lankan authorities. The Authority also did not find it credible or plausible that the Sri Lankan authorities searched for the appellant while he was in Saudi Arabia.
The Authority also made the following findings as to the Appellant being a Tamil returning to Sri Lanka, having regard to country information including, in particular, specific concerns raised by the country information about the appointment of former President Rajapaksa as Prime Minister:
27.In making my findings, I have considered the country information referred to the applicant’s representatives concerning human rights in Sri Lankan [sic] and the situation for Tamils. However, I have given greater weight to the latest DFAT report because it is recent, authoritative and based on DFAT’s on the ground knowledge and discussions with a range of sources as well as taking into account relevant and credible open source reports including those of the UNHCR, western governments and human rights organisations and Sri Lankan non-governmental organisations. Furthermore, it has been specifically prepared with regard to the current caseload for decision-makers in Australia. Based on the country information before me, conditions in Sri Lanka, particularly in the north and east (where the applicant comes from) have significantly improved since the ending of the war and from when the applicant left the country. DFAT have assessed that monitoring of Tamils in day-to-day life in [sic] has decreased significantly under the current government though surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues. They state that Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015 and that the current government includes 29 Tamils and President Sirasena presides over a diverse coalition of parties that includes Tamil members. DFAT state that they are not aware of an evidence to suggest that Sinhalese, Tamil, Muslim or other parties face any differences in treatment and that they understand Tamils do not receive unwarranted attention from authorities because of their political involvement. They assess that Sri Lankans of all backgrounds face a low risk of official or societal discrimination based on ethnicity, including in relation to access to education, employment or housing. They assess that there is no official discrimination on the basis of ethnicity in public sector employment but that limited Tamil appointments are a result of a number of factors including disrupted education because of conflict and language constraints. DFAT have stated that the number of incidents of extrajudicial killings, disappearances and abductions for ransom, including incidents of violence involving former LTTE members has reduced significantly since the ending of the conflict.
28. The United Kingdom Home Office has also reported that a person being of Tamil ethnicity would not in itself warrant international protection. They have further stated that general [sic] a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have a significant role in relation to post-conflict Tamil separatism or appear on a ‘stop’ list at the airport, would not warrant international protection [sic] Their report cited the findings from the Upper Tribunal in GJ & Others that the Sri Lankan authorities' approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.
29. I have taken into account that the submitted articles and information in the delegate’s decision about the appointment of Mahinda Rajapaksa as Prime Minister on 26 October 2018 and the concerns that this may lead to a decline in human rights in Sri Lanka particularly for Tamils and political opponents and given these some weight. I note that when the delegate made his decision it was unclear, who, if anyone was currently Sri Lanka’s lawful prime minister. I have taken this situation into consideration and acknowledge the situation is volatile and that there will be anxiety within the Tamil community. Aljazeera have stated that “Rajapaksa's return would certainly mean the reversal of the few gains that have been made on transitional justice and accountability. It would also signal the end of a joint process towards transitional justice at the Human Rights Council, which began with a landmark UN resolution in 2015. For a beleaguered Tamil population in the north and east of the country, the concern will be that history could repeat itself with the threat of further discrimination and violence looming. With no real accountability processes for previous crimes committed, Rajapaksa's return could see Tamil activists and perceived dissidents targeted once again.” Notwithstanding this, the above commentary highlights the potential future risk for Tamil activists and perceived dissidents. While the risk of harm for these groups may be heightened under a future Rajapaksa government, I find this is otherwise consistent with the current evidence that those targeted are individuals indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government. I note that Maithripala Sirasena continues as President of the country and that these concerns appear speculative and that the articles do not report an actual worsening of the human rights situation for Tamils and political opponents.
30.The applicant and his immediate family members were not members of the LTTE. Whilst I accept that he undertook some support tasks for the LTTE, these were now many years ago and I have found he was not previously targeted for this and these were low profile. Since his departure he has not been involved in any Tamil diaspora activities. I do not accept, on the evidence before me, that the applicant will be imputed with any pro-LTTE or Tamil separatist political opinion upon his return to Sri Lanka by the authorities or anyone else.
31.The applicant has employment experience in a number of occupations (including a diver, a timber yard worker and in farming in Sri Lanka and construction in Saudi Arabia). There is nothing before me to indicate that upon return to Sri Lanka, his capacity to subsist would be threatened. Whilst the country information indicates that the applicant may face a low risk of societal or official discrimination due to being a Tamil, given his profile and particular circumstances, I do not accept that there is a real chance that he will face serious harm upon return at the hands of the Sri Lankan authorities or anyone else on account of these claims.
(footnotes omitted)
In considering information from the most recent DFAT report, the Authority found that as a returned asylum seeker, the appellant may be monitored upon return to Sri Lanka and that he would need to re-establish himself in Sri Lanka. However, the Authority noted that the appellant has family in Sri Lanka and that he had previously worked in a number of occupations in Sri Lanka. The Authority did not accept that upon his return the appellant would be imputed with any pro-LTTE or Tamil separatist political opinion or that he would face serious harm due to being a failed asylum seeker.
The Authority concluded that the appellant did not face a real risk of serious harm and did not meet the requirements of a refugee under s 5H(1) of the Act. In addition to this, the Authority concluded that the appellant was not entitled to a complementary protection visa under s 36(2)(aa) of the Act because it was unlikely the appellant would face a real risk of significant harm.
THE PRIMARY JUDGE’S DECISION
Before the Federal Circuit Court the appellant raised two grounds of judicial review:
1.The Authority's refusal to exercise its powers under s 473DC to obtain information about the current situation in Sri Lanka from DFAT or any other source was legally unreasonable [sic]
2.The Authority made a critical finding of fact without probative evidence:
Particulars
a.the Authority accepted that the applicant purchased motor bikes on behalf of the LTTE
b.the Authority accepted that applicant may still have debts owing as a result of these purchases
c.the Authority made a finding that sellers of the motor bikes would not seek to harm the applicant if he returned to Sri Lanka without any probative evidence to support that finding.
In relation to ground 1, the primary judge noted that the Authority’s consideration of its discretion to get new information under s 473DC of the Act is conditioned by reasonableness. The primary judge outlined the appellant’s submissions that the Authority had an obligation to have regard to the most up-to-date information before it and that it would be “patently unreasonable” not to obtain DFAT’s latest assessment when the circumstances in Sri Lanka were rapidly changing and the appellant requested it to do so. The appellant submitted before the primary judge that there was no reason why the assessment could not be obtained expeditiously.
The primary judge noted that the relevant question is whether a particular exercise of power “lacks an evident and intelligible justification”, that the power under s 473DC to “get any documents or information (new information)” is “entirely facultative” and, as s 473DC(2) makes clear, the Authority has no obligation to exercise this power.
The primary judge found that the Authority’s decision provided an evident and intelligible justification for not obtaining new information. His Honour stated at [21]:
As the applicant acknowledges, the Authority provided written reasons for declining to get new information “from DFAT or any other source”. Those reasons included the Authority’s consideration of country information and its correct understanding of the statutory scheme governing a review under Division 3 of Part 7AA of the Migration Act. In short, the Authority’s reasons provided an evident and intelligible justification.
(footnotes omitted)
The primary judge ultimately concluded that while there was a somewhat fluid political situation in Sri Lanka, there was nothing to indicate that the uncertainty was likely to result in a deteriorating situation for the appellant and it was not unreasonable for the Authority to decline to exercise its power under s 473DC of the Act.
In relation to ground 2, the appellant submitted to the primary judge that the finding that there was no real chance of harm from the sellers of the motorbikes because 10 years had passed since the motorbikes were purchased was “pure speculation” and that this finding was irrational and illogical. His Honour stated that in order to prove that the finding was irrational or illogical the appellant must show that some other inference was available, and that this alternate inference was the only one that could be drawn on the evidence. His Honour concluded that there were logically probative facts supporting the Authority’s conclusion, including that the loan had been outstanding for 10 years and the appellant had not presented evidence concerning any recovery action. His Honour ultimately concluded that there was nothing irrational or illogical about the Authority’s finding and that it was a rational inference drawn from the facts and circumstances of the applicant’s case. The correctness of his Honour’s conclusion in relation to ground 2 is not in issue in the appeal.
THE APPEAL
The appellant was granted leave to rely on an amended notice of appeal containing the following single ground of appeal:
The primary judge erred in not finding that The Authority's refusal to exercise its powers under s 473DC to obtain information about the current situation in Sri Lanka from DFAT or any other source was legally unreasonable.
As previously mentioned, the appellant does not challenge the Authority’s rejection of the new country information that was included in, or attached to, the submissions of 14 December 2018 and 15 December 2018. The appeal is concerned only with the Authority’s failure to obtain new information about the current situation in Sri Lanka from DFAT or any other source by exercising its power to do so under s 473DC.
In his written submissions, the appellant submitted that the Authority has an obligation to have regard to the most up to date information and relied on the decision of Rares J in SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 (“SZJTQ”) as approved by the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [75] (“MZYTS”). At [40], Rares J stated:
If the decision-maker has actual notice of a recent and significant matter affecting the question whether the applicant for a protection visa has a well-founded fear of persecution in his or her country of origin, the subject-matter, scope and purpose of s 36(2)(a) require the decision-maker to base his or her decision, as to whether the fear claimed is well-founded, on that information: Peko-Wallsend 162 CLR at 45. This is not to say that the decision-maker is obliged to find that the applicant in fact has satisfied him or her that the applicant, for example, has a religious belief as claimed simply because the latest information actually available to the decision-maker (i.e. before him or her) supports a conclusion of persecution of adherents of that religion in the applicant’s country of origin. Rather, it is to say that in evaluating the claimed fear, the most recent information is relevant and must be considered.
The appellant also submitted (as the first respondent accepts) that the discretion to obtain new information under s 473DC must be exercised reasonably. The appellant submitted that it was manifestly unreasonable for the Authority not to obtain new information in circumstances where the situation in Sri Lanka was volatile and a request was made to access new information. In making this submission, the appellant stated that this was an obvious inquiry about a critical fact, the existence of which could be easily ascertained. He relied on a number of authorities including, in particular, Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 (“Wei”) per Nettle J at [49]-[51].
The appellant also submitted that there was not an evident and intelligible justification given by the Authority for not obtaining further information. The appellant submitted that in deciding whether to exercise the discretion, the Authority should have taken into account the changing circumstances identified in the country information and that this was particularly relevant in this case because of the political uncertainty in Sri Lanka.
The appellant also submitted that the Authority’s reasons for not obtaining further information because of the statutory objective of providing a mechanisms of limited review that is efficient, quick and free of bias were not intelligible. The appellant submitted that it was not intelligible to refuse to exercise a power where circumstances exist which are out of the ordinary (i.e. the volatile situation in Sri Lanka) and there was no reason why an assessment could not be obtained expeditiously so as not to interfere with the Authority’s statutory objectives.
In his oral submissions, the appellant’s counsel noted that because the Authority did not accept the new country information presented to it, the most recent information that it could draw on was what was presented to the delegate, which did not include any updated information that took account of developments occurring between 20 November 2018 and 14 January 2019. The appellant’s counsel argued that given the situation at the time of the delegate’s decision, including that the Sri Lankan Parliament was suspended and that there was an election pending, the request to seek further information was not a general request even though the wording of the request was in general terms (i.e.“the Authority is further urged to obtain/get information from DFAT sources relating to the volatile situation in Sri Lanka at the present time before it makes its decision”). The appellant’s counsel submitted that the request should have been interpreted as relating to the aforementioned events.
There was a discussion during the argument as to whether the new information provided by the appellant in the 15 December 2018 submission to the Authority could be used to inform the question of what information the Authority should have obtained for itself, even though that new information was excluded by the Authority. The appellant’s counsel ultimately submitted that there was no need to refer to the new information in the 15 December 2018 submission to the Authority to determine what information should have been obtained pursuant to the appellant’s request as the nature of subsequent developments to which the request related was evident from the delegate’s decision: for example, the delegate stated “[t]he President subsequently dismissed the parliament and called a general election for 5 January 2019”.
The appellant’s counsel specifically referred to [29]-[30] of the Authority’s decision and submitted that even though the Authority referred to the possibility of a risk of harm under a government led by Mr Rajapaksa, further country information, had it been obtained, might have made the identity of the new government clear.
In his oral submissions, the appellant’s counsel relied on ABT17. However, that decision is one that is fact specific in which the Authority rejected evidence from the visa applicant which had been accepted by the delegate. The Authority made an adverse credibility finding against the visa applicant based on the consideration of an audio recording of an interview between the delegate and the visa applicant. The plurality found that it was unreasonable in those circumstances for the Authority not to exercise the power to interview the visa applicant so as to place itself in as good a position to assess credibility as the delegate had been in.
The appellant’s counsel also relied on Li. The appellant submitted that the statutory requirement that the Authority act efficiently had to be balanced against the requirement that the appellant be given the opportunity to present their case, which in this case required the Authority to obtain new information. The appellant’s counsel submitted that the Authority’s reliance on the statutory scheme was insufficient when there is a specific gap in time where specific events were to take place that could impact the decision.
The first respondent did not dispute that the powers of the Authority are to be exercised within the bounds of reasonableness. The first respondent submitted that there was no unreasonableness in the Authority’s decision not to get new information. The first respondent submitted that the Authority’s reasons, particularly at [7] and [29], provide an evident and intelligible justification for why the Authority did not exercise the discretion to obtain new information. The first respondent relied on Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 as authority that where reasons are provided they are the “focal point for the assessment” of a ground asserting legal unreasonableness, and that “[i]t would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power”. The first respondent further submitted that given the Authority’s reasons and the circumstances of the case it cannot be said that its decision was not open to it.
The first respondent also submitted that by the appellant’s reliance on Nettle J’s observations in Wei, the appellant was seeking to rely on a new ground of review namely, that the Authority fell into error by failing to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable. The first respondent submitted that leave to argue this ground should be refused because it is not covered by the ground of appeal, it was not argued in the Court below and it could have been met with evidence at trial addressing, for example, why the asserted fact could not have been easily ascertained. The first respondent also submitted that this new ground lacks merit in any event.
CONSIDERATION
It is convenient to first deal with the appellant’s reliance on SZJTQ and MZYTS and the appellant’s submission that the Authority was required to have regard to the most up to date information.
The short answer to the appellant’s reliance on SZJTQ and MZYTS in his written submissions is that those cases were concerned with the failure of the Refugee Review Tribunal to have regard to information available to it and which it was required to take into account. In the present case, there was no “new information” of which the Authority had knowledge that it was required to take into account. Here the question is whether the Authority’s decision not to get new information pursuant to its power under s 473DC was legally unreasonable.
In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ), Allsop CJ explained at [11] that when reviewing a decision for legal unreasonableness:
… [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …
A finding that a decision not to get new information pursuant to s 473DC is legally unreasonable is not open where the decision is within any area in which the decision-maker has a generally free discretion which resides within the bounds of legal reasonableness: see Li at [66] per Hayne, Kiefel and Bell JJ.
The Authority’s reasons at [7] refer to the appellant’s request that the Authority get new information from DFAT relating to the volatile situation in Sri Lanka. The reasons for the Authority’s decision not to get new information appear at [7] and [29]-[31]. At [29] the Authority makes clear that, although the risk of harm to “Tamil activists and perceived dissidents” may be heightened under a future government led by Mr Rajapaksa, the Authority did not accept that the appellant was such a person. At [30] the Authority noted that the appellant and his immediate family members were not members of the LTTE, that the support he gave to the LTTE occurred many years ago, that he had not previously been targeted for this and that since his departure from Sri Lanka, he had not been involved in any Tamil diaspora activities. In particular, the Authority noted that it did not accept that the appellant would be imputed with any pro-LTTE or Tamil separatist political opinion on his return to Sri Lanka by the authorities or anyone else. Although the Authority acknowledged the possibility that a government led by Mr Rajapaksa might increase the risk for certain groups, it is apparent that the Authority was not satisfied that the appellant was a member of any such group.
In his oral submissions, counsel for the appellant focused on the information gap said to exist between the time of the delegate’s decision on 20 November 2018 and the date of the Authority’s decision on 14 January 2019. Counsel for the appellant drew attention to the delegate’s acknowledgement that Sri Lanka was “currently in a state of political uncertainty”, that on 26 October 2018 the President abruptly dismissed the Prime Minister, appointed Mr Rajapaksa in his place, and also suspended Parliament. The delegate further noted that these events gave rise to protests and violence in which people died, that the President subsequently dismissed the Parliament and called a general election for 5 January 2019. The delegate also acknowledged that on 13 November 2019 the Sri Lankan Supreme Court suspended the President’s dissolution allowing Parliament to resume the following day. The delegate noted that it remained unclear who, if anyone, was currently Sri Lanka’s lawful Prime Minister and that Parliament had again been suspended until 23 November 2018.
Counsel for the appellant submitted that those events and the acknowledged uncertainty as to who was Sri Lanka’s lawful Prime Minister provided some content to the appellant’s request that the Authority “obtain/get information from DFAT sources relating to the volatile situation in Sri Lanka.” Counsel for the applicant further submitted that in that respect the delegate’s reasons provided context to what might otherwise appear to be a very general request.
One of the difficulties with the appellant’s case is that it is not at all clear what further information he says the Authority should have obtained. Even assuming that the Authority could have obtained from DFAT more up-to-date information (e.g. as to the outcome of any general election) that may not have assisted the Authority in its consideration of the appellant’s case. There could be no assurance that a general election (assuming one was held on 5 January 2019) would have resolved the political turmoil to which the delegate referred or that the outcome of the general election would necessarily determine whether Mr Rajapaksa would be appointed the lawful Prime Minister of Sri Lanka. In any event, what is tolerably clear from the Authority’s reasons is that it did not consider the appellant would be at risk of harm even if that were to occur. In those circumstances, the Authority’s decision not to get any new information from DFAT was intelligible and logical and cannot be characterised as legally unreasonable.
The difficulty to which I have just referred provides an answer to the appellant’s reliance on Nettle J’s observations in Wei. His Honour said at [49]:
… In Prasad v Minister for Immigration and Ethnic Affairs [(1985) 6 FCR 155 at 169-170], Wilcox J held that, although it is not enough to establish jurisdictional error on the part of an administrative decision-maker that the court may consider that the sounder course for the decision-maker would have been to make further inquiries, where it is obvious that material is readily available which is centrally relevant to the decision to be made, and the decision-maker proceeds to make the decision without obtaining that information, the decision may be regarded as so unreasonable as to be beyond jurisdiction. In Ex parte Helena Valley/Boya Association (Inc) [(1990) 2 WAR 422 at 445-446], Ipp J, sitting as a member of the Full Court of the Supreme Court of Western Australia, applied Wilcox J’s reasoning in Prasad in order to conclude that a local council had failed properly to apply its mind to the question which needed to be decided in determining whether to approve a planning application. In Minister for Immigration and Ethnic Affairs v Teoh [(1995) 183 CLR 273 at 289-290], Mason CJ and Deane J expressly approved of Wilcox J’s reasoning in Prasad and of its application in appropriate cases. And in Minister for Immigration and Citizenship v Le [(2007) 164 FCR 151 at 174-179 [64]-[79]], Kenny J surveyed the course of authority following Prasad and held that it was legally unreasonable for the Migration Review Tribunal to fail to make an obvious inquiry. Based on those decisions, in Minister for Immigration and Citizenship v SZIAI [(2009) 83 ALJR 1123 at 1129 [25]; 259 ALR 429 at 436], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ similarly concluded that there may be circumstances in which a merits reviewer’s failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can be seen to supply a sufficient link to the outcome of review to constitute a constructive failure to exercise jurisdiction.
This is not a case in which the Authority failed to make an obvious inquiry about a critical fact. Counsel for the appellant did not identify any critical fact nor was there any evidence to show whether or not that fact (whatever it may be) was easily ascertained. In any event, for the reasons previously stated, the Authority’s decision in this case not to obtain further information was not shown to be legally unreasonable. Nor was it argued (either before the primary judge or on appeal) that there was any constructive failure to exercise jurisdiction.
DISPOSITION
I agree with the primary judge that the appellant failed to establish that the Authority’s decision not to get further information as requested by the appellant was legally unreasonable. The appeal will be dismissed with costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 22 February 2023
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