ABT17 v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 The appellant appeals from a judgment of the Federal Circuit Court of Australia delivered on 23 March 2018 and published as ABT17 v Minister for Immigration and Anor [2018] FCCA 658. By that judgment, the primary judge dismissed the appellant's application seeking judicial review of the decision of the second respondent the Immigration Assessment Authority ("IAA") to affirm a decision made by a delegate of the first respondent ("Minister") not to grant the appellant a protection visa. 2 The appellant is a Tamil and a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 27 August 2012. In October of 2015, the appellant applied for a temporary protection visa and in relation to that application was interviewed by a delegate of the Minister. 3 On 21 September 2016, the delegate of the Minister refused to grant the appellant a protection visa. In relation to an issue to which I will return, the delegate stated that the evidence given by the appellant at the protection visa interview was "plausible". That finding concerned evidence given by the appellant to the delegate in relation to various claims of persecution, including claims that Sri Lankan army officers had on various occasions detained the appellant and subjected him to physical assault. Despite the delegate's acceptance of the appellant's evidence as plausible, the delegate found, on the basis of country information, that the situation in Sri Lanka had changed and that for that reason the appellant does not have a well-founded fear of persecution by reason of either his Tamil ethnicity, that he was a young Tamil male, that he was a Tamil from northern Sri Lanka, that he is a failed asylum seeker, or a person who had illegally departed Sri Lanka. 4 On 28 September 2016, the matter was referred to the IAA. The appellant's representative provided a submission to the IAA. The appellant was not invited to appear before the IAA to give any evidence. It seems apparent that the discretion that the IAA is given to obtain new information by s 473DC of the Migration Act 1958 (Cth) ("the Act") was not affirmatively exercised. 5 I will return to the IAA's decision shortly, but, first, I shall deal with the hearing before the primary judge. At the hearing before the primary judge, without apparent explanation, the appellant effectively abandoned the grounds of appeal he had relied on and sought leave to raise a new argument. The primary judge refused the appellant leave to amend, noting that he had been represented by the same firm of solicitors since the proceedings were commenced, that consent orders had been made in May for the filing of an amended application, and in September for the matter be set down for hearing, and that the appellant filed submissions in February of 2018. The primary judge did, however, consider the merits of the new ground later in his Honour's reasons. 6 It is also necessary to record that the appellant had sought an adjournment before the primary judge to obtain a transcript of the interview conducted by the delegate of the Minister. That application was refused, essentially for the same reasons as given in relation to the application for leave to amend. Additionally, the primary judge refused the application because the appellant's solicitor had indicated that he had not listened to the delegate's interview and so could not reasonably argue that there would be any utility in the adjournment. 7 Of the grounds of judicial review dealt with by the primary judge, it is only ground 5 which is relevant to the new ground sought to be raised before the primary judge and the grounds raised by the appellant on this appeal. In relation to ground 5, the appellant sought to argue that the IAA's decision was illogical or unreasonable, attacking in particular [10] of the IAA's reasons for decision. That paragraph is in the following terms: In summary, the applicant's claims of past harm relate to his being questioned, detained and harmed on multiple occasions at the SLA camp close to his home in Mullavi. I found the applicant's evidence in his TPV interview with the delegate to be generally lacking in detail; the applicant appeared unable to expand in any detail on a number of his written claims and at times sounded vague and hesitant. I also found his evidence in relation to some incidents he claims occurred following his and his family's return to their home after they were released from an IDP camp to be exaggerated. Having considered the applicant's written claims (statements in 2013 and 2015) and the evidence he gave in his arrival and TPV interviews, I have some concerns about his truthfulness. The applicant claims he was targeted by the SLA for harm on a number of occasions over a lengthy period of time with a view to him confessing he was LTTE. As will become apparent, while I accept some of his claims, I am of the view he has exaggerated and embellished some of the incidents he relies on in order to enhance his profile and claims for protection. 8 The appellant contended before the primary judge that the IAA could not reasonably have concluded that the appellant's evidence in the interview was lacking in detail and at times vague and hesitant, given that the delegate had found the appellant's evidence to be plausible. The appellant, however, accepted before the primary judge that in order to make out that argument he would need to have evidence of the delegate's interview. The primary judge held that the ground had little prospect of success because the appellant was unable to establish that there was no basis on which the IAA could reasonably have made its findings. For that reason the primary judge refused leave to raise the new ground. 9 The appellant is no longer legally represented. He appeared on the appeal assisted only by an interpreter. The appellant's Notice of Appeal raises two grounds as follows: 1. The decision of the Federal Circuit Court is affected by a denial of procedural fairness / natural justice Particulars a. The IAA could not reasonably have concluded that the applicant's evidence in the TPV interview was lacking in detail given the delegate found his evidence plausible. Therefore the application for an adjournment in order to obtain the delegate's interview should not have been refused by the Federal Circuit Court. b. The Court erred in not granting the applicant to make a late application for an amendment to his grounds of review. 2. The decision of the Federal Circuit Court is affected by jurisdictional error Particulars a. The Court has erred in its conclusion re the principles of reasonableness. 10 The appellant did not file any written submissions, but did make some oral submissions today. None of the submissions made were directed at the appellant's grounds of appeal. The appellant said that the legal practitioner who had helped him previously, including before the primary judge, was "under question". He suggested that the lawyer had made the same mistakes in relation to his application as the lawyer had made in relation to other applications. 11 That submission, unparticularised and unassisted by any evidence, can be of no assistance to the appellant on the appeal, nor can submissions made by the appellant going to the merits of his application for a protection visa, including submissions as to whether the security situation in Sri Lanka had or had not improved. 12 I accept, largely for the reasons given by the Minister in the Minister's written submissions, that ground 1 of the appeal must be rejected. That ground raises two aspects going to procedural fairness. The first aspect concerns the rejection of the adjournment that was sought. The adjournment was refused, for two reasons: first, the primary Judge considered that the appellant had already been given a reasonable opportunity to prepare his case; and, secondly, that, as the appellant's lawyer had not listened to the interview with the delegate, the basis for the adjournment was undermined. To succeed on this ground, the appellant would need to demonstrate a discretionary error of the type referred to in House v the King (1936) 55 CLR 499 at 505. No such error is demonstrated. 13 The second aspect of the procedural fairness complaint raised by ground 1 concerns the primary judge's refusal of leave to amend. That refusal occurred essentially for three reasons: first, the appellant had already been given an opportunity to prepare his case; second, the primary judge relied on the pressure on the court lists; and, third, his Honour considered that the proposed ground was without merit. I will return shortly, in dealing with ground 2, to the merit of the proposed ground. For reasons I will explain, I do not regard the primary Judge's conclusion that it lacked merit to be erroneous. 14 Each of the factors relied upon by the primary Judge to refuse leave to amend were relevant to the discretion exercised. No error in the exercise of that discretion has been demonstrated. For those reasons, ground 1 of the appeal must be rejected. 15 I then turn to ground 2. That ground asserts that the decision of the primary judge is affected by jurisdictional error, and the particulars to the ground suggest an incorrect application of the principles of reasonableness. I think the Minister is right to contend that underlying this ground seems to be an argument that the fact that the IAA reached different credibility findings from those reached by the delegate establishes legal unreasonableness. As to that issue, the primary judge, at [29] of his Honour's reasons, said this: The applicant argued that the conclusion in this paragraph that the applicant had embellished his claims was unreasonable. He developed this argument by drawing the Court's attention to various claims made by the applicant that he had been tortured in the past, the delegate's decision that the applicant's evidence at the protection visa interview (referred to by the Authority as the TPV interview) was plausible, and the fact that the delegate was not only in control of that interview but also had available to her information not available to the Authority (namely, that she was shown scarring on the applicant's back which could not have been visible to the Authority who never saw the applicant). 16 In my view, and consistently with the submission made by the Minister, no appellable error is disclosed in the conclusion as to unreasonableness reached by the primary Judge. 17 As a model litigant, the Minister drew the Court's attention to the decision of Griffiths, Mortimer and Steward JJ in DPI17 v the Minister for Home Affairs [2019] FCAFC 43. The Full Court there held that, in the particular circumstances of that case, it was legally unreasonable for the IAA to have reached different credibility findings from those reached earlier by a delegate of the Minister without first considering whether to exercise the IAA's power to obtain further information under s 473DC of the Act. 18 The fact that the Minister had drawn the Court's attention to that judgment, and the fact that it may have some relevance to the appellant's circumstances, was drawn to the appellant's attention. The appellant did not seek to rely upon DPI17, but it seems to me that, in the circumstances, and particularly given that the appellant is unrepresented, I should give some consideration to whether the appellant's appeal could be assisted on the basis of the principles discussed in DPI17. 19 Like DPI17, this is a case in which the IAA has reached different credibility findings from those reached by the Minister's delegate in considering an application for a protection visa. Although a transcript of the appellant's interview with the delegate has not been made available either to me or to the primary judge, the evidence given by the appellant at that interview is referred to and extensively outlined in the reasons for decision of the IAA. Some of that account is given at [10] of the IAAs reasons (extracted above) but further detail is later given in those reasons, including that, at the delegate's request, the appellant took off his shirt and showed the delegate some scarring on his back in support of a claim that he had been beaten on several occasions by different officers of the Sri Lankan Army. 20 In particular, the IAA's reasons describe (at [15]) evidence given by the appellant of an incident in 2011 in relation to which the appellant claimed that he was detained for six days as punishment for having pushed an army officer who had come to his family home looking for him. The appellant claimed that he had been detained by the army and beaten and tortured over six days. The IAA's reasons record the delegate as having asked the appellant how he was tortured, and say the appellant sounded hesitant, before stating that he was locked in a room, not given food, beaten, and that the officers asked him to clean their toilet. Furthermore, the IAA describes (at [16]) that after a break in his interview with the delegate, the appellant disclosed that he had also been sexually tortured during the six days that he was detained. The IAA's reasons record that the appellant had told the delegate that he was only giving the information at that time because that was his last opportunity, and that he had not spoken about it before because it was very degrading. 21 On the basis of the detail of the interview by the delegate given in the IAA's reasons, it must be accepted that the delegate accepted as "plausible" the appellant's evidence given at the interview that he had been physically assaulted, including sexually tortured. 22 On that issue and on credibility grounds, the IAA took a different view. At [23] of the IAA's reasons, the IAA stated that it did not accept that the appellant was detained for six days or that during that time he was sexually tortured. In relation to whether the appellant had been detained, the IAA stated that it did not find it plausible that the appellant had been detained for six days in circumstances where there was no action taken by his family to secure his release. 23 In relation to the appellant's claim to have been sexually tortured during the alleged detention, the IAA disbelieved that claim, including because despite what it regarded to have been sympathetic questioning by the delegate, the appellant was unable to talk about it and was unable to provide any details of what happened to him, other than saying that there were two or three army men and that he was unconscious for a lot of the time. Additionally, the IAA found the appellant's explanation given to the delegate as to why he did not seek medical treatment afterwards unconvincing. 24 It seems to me that the IAA must have been aware that, in the interview with the appellant, the delegate had the opportunity to observe the appellant's demeanour. Not to merely listen to a tape of the interview (as it appears the IAA did) but to see and evaluate the physical manifestations which must have accompanied the evidence given by the appellant. The IAA must have recognised, including because of the issues addressed by the evidence, that the delegate's findings as to the plausibility of the appellant's evidence, and in particular the evidence given about the alleged sexual torture, may have been, at least in part, based on the delegate's positive assessment of the appellant's demeanour. In those circumstances, it may well be thought that a reasonable decision-maker would not have made credibility findings contrary to those made by the delegate without considering whether or not the powers given to the IAA under s 473DC should be exercised, including for the purpose of inviting the appellant to attend for an interview so that the IAA could conduct its own assessment of the appellant's demeanour. 25 I need not, however, come to a final view as to whether or not there is a sufficient parallel between the facts of this case and the facts of DPI17. As the Minister rightly contended, in order for jurisdictional error to be established, I would need to be satisfied that the IAA failed to consider exercising the s 473DC discretion, a matter on which the appellant bears the onus of proof. Furthermore, I would need to be satisfied that any such failure was material to the IAA's decision. 26 In relation to materiality, and relying principally on the judgments of Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, the Minister contended that the appellant has not established that there was a realistic possibility of the outcome before the IAA being different had the IAA considered to exercise the discretion given to it under s 473DC. I consider the Minister's submission on materiality to be correct. Both the delegate and the IAA relied on country information dealing with what might broadly be described as changed circumstances in Sri Lanka. That is, changed circumstances since the appellant left Sri Lanka relating to the treatment of Tamils and persons suspected of having had a prior involvement with the LTTE. 27 At [33] of the IAA's reasons the IAA concluded that, taking into consideration the number of years that had elapsed since the appellant had left Sri Lanka, his personal circumstances and the country information to which the IAA had referred, it was not satisfied that the appellant would face a real chance of serious harm on return to Sri Lanka now or in the reasonably foreseeable future on the basis of his Tamil ethnicity or imputed political opinion. This was, in essence, an alternative basis for the decision made which was not reliant on whether the appellant's claims to have been beaten and sexually tortured were or were not accepted. Even if the IAA had exercised affirmatively the s 473DC discretion and had arrived at the same view as that arrived at by the delegate in relation to the claims of sexual torture and other physical abuse, in the face of the alternative basis for the application's rejection, the appellant has failed to demonstrate that there was a realistic possibility of the outcome being different. 28 It follows that the appellant's appeal must be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.