Application for leave to pursue a new ground
68 The appellant is required to seek leave to pursue this new ground 2 on the basis that the "interests of justice" demand it: O'Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319; Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [93] - [94]; Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79]. Notably, it is fundamental to the administration of justice that the substantial issues between the parties are dealt with at trial and those proceedings are not reduced to a "preliminary skirmish": Coulton v Holcombe (1986) 162 CLR 1 at 7. It is regrettable that this practice of raising new matters on appeal has emerged in some migration matters: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48]. This is particularly so where the appellant was represented both before the primary judge and on appeal.
69 The appellant seeks leave on two bases: (a) by reason of his reliance on the reasoning in ABT17, which was a decision that was not handed down until almost a year after this proceeding was heard by the primary judge; and (b) alternatively, on the basis of representative error - an "oversight" on the part of Counsel, rather than arising from a forensic decision not to run the point.
70 For the following reasons, leave is refused.
71 First, there has been no adequate explanation for the appellant's failure to advance the point before the primary judge below. The appellant's reliance on the applicability of the reasoning in ABT17 is misguided. For the reasons set out at paragraphs [72] - [90] below, the circumstances of that case were largely different to the present case and are distinguishable. Secondly, the appellant incorrectly describes the state of the law prior to ABT17 as being altered in a marked way by the advent of the ABT17 decision. ABT17 arose from a particular factual scenario (where the IAA listened to, and questioned, the appellant's account by reason of an audio-recording) and applies the law to those circumstances. Given that ABT17 may be distinguished from the present case, there is doubtful merit to the new ground. Thirdly, the Minister raised, and I accept, that there is necessarily prejudice suffered by a party where the scheme of review would be subverted and the Minister would be effectively deprived of the opportunity for appellate review on this ground, if leave is granted. As stated by Lander J in SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30], there are good reasons why this Court should not be made a de facto court of original jurisdiction. Lastly, the fact of representative "oversight", in the face of these other bases, does not weigh the balance in favour of the discretion being exercised. This is particularly so given the weaker the merit of the proposed ground, the greater the need for other discretionary factors to be in the appellant's favour: Han v Minister for Home Affairs [2019] FCA 331 at [15].
72 Furthermore, I consider the new ground has limited merit, which goes against leave being granted.
73 In support of the new ground, with respect to why the IAA committed jurisdictional error by its purported failure to obtain new information within its powers under s 473DC, in the form of an interview, the appellant relied on an inconsistency between the IAA's reasoning at paragraphs [10] and [14] of its reasons. As extracted below, at paragraph [10] of its reasons, the IAA largely accepted that the applicant was consistent and "generally credible with his claims of his and his relative's experiences":
The applicant has been consistent and generally credible with his claims of his and his relative's experiences during the time he lived in Sri Lanka. They are also supported by a number of documents provided by the applicant (a certificate regarding residentship, a relief assistance card from Vavuniya camp, a letter of support from Reverend Father… , a death certificate of brother, a release certificate from an IDP camp and return form). I accept the following:
• He was born in Chavakachcheri, Jaffna District, Northern Province and he moved to Vanni with his family when he was a baby. His parents still live in Vanni, in the former LTTE controlled area.
• His cousin… was involved in the LTTE as a captain in the Charles Antony Brigade. He was detained after the war. He has a current court case that arose after attempting to flee the country.
• His brother-in-law… was involved in the LTTE including performing sentry duty, undertaking defence training; providing food and storing weapons for the LTTE. He committed suicide about one year ago after the problems he had with the CID.
• His father supported the LTTE by providing food.
• In 2007, he and his family were displaced for about three years to Puthu Muripu, Kilinochichi, Tharmapuram and Puthumathalan. During this time he was also kept in an army camp in Vavuniya for about four or five months with his family.
• In 2007, whilst living in Kilinochichi, his oldest brother… was taken by the LTTE to join them as a fighter. He was killed in 2008.
• In 2008, he and his family were stopped by the army, whilst travelling from Puthumathalan. They checked their IDs and then took them to a school two or three kilometres away. At the school, they separated them and started interrogating them. He was taken to a separate room with three members of the CID where they all started to ask questions about whether he was involved in the LTTE. They hit him with their hands, a wooden stick, a steel rod and their rifles on his back and his face for about three hours and later they forced them to take a bus to a Internally Displaced Persons (IDP) camp in Vavuniya.
• After about a month of staying at the camp, two members of the army asked him for his ID and started scolding and hitting him with the pole of the tent, their shoe and their gun. The CID came to their tent at the camp and told his father they had plans to detain him because they knew he had been in the LTTE. They extorted money from his father.
• In 2009 or 2010, he and his family were released from the camp with the assistance of the UNHCR and the IOM. The UNHCR took all of their details and they were given UNHCR documents including an ID at the camp in Puthumathalan. Once they were released, they went to Jaffna for about four months and then in 2010, they had returned back to their family home in Vanni.
• In Vanni, they had to build their house again because it had been destroyed by the war. The army was constantly monitoring them by taking photographs, checking their IDs and patrolling the streets.
• In 2010, a senior army officer called them to the army camp and interrogated them for about one or two hours.
• In September 2012, whilst working in his father's restaurant, 4-5 CID officers refused to pay for their food and threatened the applicant. One of them hit the applicant and they left without paying. The police came to the restaurant and he asked if he could make a report. The police officers said there was no problem and that he could not make a report. After this, he left for Australia.
• The CID continued to cause problems at the restaurant and his father has told him that the CID person he had with [sic] the confrontation with would come back and ask where he was [sic] gone. His father became afraid and closed the restaurant in 2013.
74 However, by contrast, at paragraph [14] of the IAA's reasons, the IAA rejected the appellant's claim that he was of "adverse interest to any of the Sri Lankan authorities (including the army and CID) now" (emphasis added), as follows:
I do not accept that the applicant is of any adverse interest to any of the Sri Lankan authorities (including the army and CID) now or that he would be upon his return to Sri Lanka. I do not accept that since his departure in November 2012, the Sri Lankan army have returned to his family's home and asked about his whereabouts and why he left most recently in 2017. I do not accept that his parents said they were not in contact with him. I do not accept that his parents have told him about four other occasions where members of the army have asked about him. I do not accept that in October 2018, different CID officers came to his home and asked about him as his name was on the family card. I do not accept that his mother said that she did not have contact with him and the CID took a photograph of him when they left. I find it implausible and not credible that the Sri Lankan authorities (army and CID) would have continued to come to look for him for so many years given all the circumstances. The applicant had just turned 16 years old in May 2009 when the war ended and many years have passed since that period. He was not involved in the LTTE in any way either during or after the conflict, other than receiving some self-defence training at school for 1-2 days many years ago. The applicant was interrogated by the Sri Lankan authorities on a number of occasions in 2008-2010 and whilst I have accepted that he was physically mistreated and that his father paid a bribe on one occasion, he was not detained or charged with any offence and he was released from the camp in 2010 which strongly indicates that he was not of continuing adverse interest to them for any reason including suspected support and/or involvement with the LTTE.
(Emphasis added).
75 The appellant's claim relates to the IAA's rejection, as emphasised immediately above, of his claims relating to the purported ongoing interest by the Sri Lankan authorities in him, including his claim of the authorities coming to his home in October 2018 and asking about him. This finding is contrasted with the finding of the delegate, in Part 5 of her reasons, that:
Since his arrival in Australia on 14 November 2012, the army has returned to his family's house in Vanni four times and asked about his whereabouts, the las [sic] time being in October 2018.
76 Contrary to the premise underlying the appellant's submission, the IAA was not required to notify the appellant that it was considering taking a different view, adverse to the appellant, from the material considered by the delegate: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [72].
77 The appellant's reliance on ABT17 as being supportive of his claim that the IAA's failure to "get information" from the appellant, in the form of an interview, was legally unreasonable, is misguided. Recently, in CVP17 v Minister for Immigration and Border Protection [2021] FCA 1502, O'Bryan J considered a number of occasions where it was argued to be legally unreasonable for the IAA to not get new information. At [46], O'Bryan J observed the following:
On a number of occasions, the Court has considered whether a failure by the Authority to seek additional information from a visa applicant under s 473DC when conducting a review is unreasonable in the legal sense. Each case turns on its own facts. However, it is possible to distil the following principles from the decisions:
(a) The legislative scheme of review established by Pt 7AA (review by the Authority) differs from the legislative scheme of review established by Pt 7 (review by the Administrative Appeals Tribunal). In particular, under Pt 7, the Administrative Appeals Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments. In those circumstances, procedural fairness requires the Tribunal to inform the applicant of potentially adverse conclusions that are not obvious on the materials and the nature and content of the adverse material: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [32] . However, those principles are not directly applicable to a review under Pt 7AA given the different statutory requirements for the review. Pt 7AA of the Act is an "exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews by the Authority": DGZ16 at [69] per Reeves, Robertson and Rangiah JJ.
(b) As a general proposition, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: DYK16 v Minister for Immigration & Border Protection (2018) 267 FCR 69 at [74] per Collier, Middleton and Rangiah JJ It is open to the Authority to reach a decision based on the review material even if the referred applicant is unaware of the significance of that material: CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641 at [55] -[57] per Thawley J.
(c) However, circumstances may arise in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant. Legal unreasonableness is not to be assessed through the lens of procedural fairness to the applicant; rather, a conclusion in this regard requires close focus upon the particular circumstances of exercise of the statutory power: Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ, citing CRY16 at [67] and Li at [76]. An example is afforded by CRY16. The Authority had purported to determine the review on the basis that it was reasonable for the applicant to relocate to a particular part of his home country. However, that possibility had never been put to the applicant, before or during the review conducted by the Authority. The Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation (CRY16 at [82] per Robertson, Murphy and Kerr JJ). CRY16 was a case where additional information (as to the reasonableness of relocation) was "necessary in order to complete the review": DGZ16 at [70].
(d) Similarly, the case of Minister for Immigration & Border Protection v DZU16 (2018) 253 FCR 526 concerned a decision of the Authority to affirm the refusal of a visa application on the basis that the visa applicant could relocate to another area within his home country. The Authority had considered new country information in determining the visa applicant's ability to relocate (to an area of his home country other than that considered by the delegate at first instance). The Full Court (Robertson, Murphy and Kerr JJ) applied CRY16 in finding that it was legally unreasonable for the Authority not to have considered whether to exercise its discretion under s 473DC of the Act to invite the visa applicant to an interview to give new information in respect of whether relocation to that area was practicable (at [81], [85]).
(e) Another example is afforded by DPI17 v Minister for Home Affairs (2019) 269 FCR 134 (DPI17). In that case, the delegate had made a positive assessment of the appellant's demeanour at the interview and the delegate's acceptance of certain claims by the delegate was based primarily on the delegate's assessment of the appellant's demeanour (DPI17 at [46]). Further, during the course of the delegate's interview with the applicant, the delegate indicated that certain discrepancies in the applicant's evidence were not major and that she would not put a lot of weight on those discrepancies. In reliance upon those statements, the applicant did not address the inconsistencies in his post-interview submissions to the delegate. The Authority reviewed the decision and made various credibility findings adverse to the applicant based on the discrepancies in the evidence. The Full Court found that, in circumstances where the Authority must have been aware of the delegate's positive assessment of the applicant's demeanour in the interview, it was legally unreasonable for the Authority not to consider exercising its power under s 473DC to invite the applicant to give new information when it was minded to give weight to the discrepancies in the applicant's evidence and come to a different conclusion on the claim (at [46] per Griffiths and Steward JJ and [58] per Mortimer J).
(f) In ABT17 v Minister for Immigration & Border Protection (2020) 269 CLR 439 , the Authority listened to an audio recording of an interview that the delegate had conducted in person with the appellant. The Authority affirmed the delegate's decision, and in doing so rejected a central part of the appellant's account which the delegate had accepted as plausible. The majority of the High Court (Kiefel CJ, Bell, Gageler and Keane JJ) held (at [24]-[25]) that while the Authority is not required to interview a referred applicant merely because credibility is in issue, the Authority will be found to have acted unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview, and accepted by the delegate, wholly or substantially on the basis of its own assessment of the manner in which that account was given.
(g) Most recently, in DVO16 v Minister for Immigration & Border Protection [2021] HCA 12; 388 ALR 389 , the plurality (Kiefel CJ, Gageler, Gordon and Steward JJ) made the following observations about the potential for the Authority to breach the reasonableness condition in connection with its power to seek further information (at [20]):
Faced with translation errors in a recording of a protection interview revealed or suggested by the review material provided by the Secretary, considered alone or in light of such submissions as might be made on behalf of the referred applicant during the course of the review, the Authority would have the potential to breach the reasonableness condition implied into its powers to get and consider new information were it to fail to exercise those powers to interview the referred applicant and then to consider the referred applicant's testimony as correctly translated. Equally, the Authority would have the potential to breach the reasonableness condition implied into its duty to review the referred decision by considering the review material were it to make findings adverse to the referred applicant with knowledge of translation errors without having exercised its procedural powers to get and consider new information which might address those errors.
(Emphasis in original)
78 Particular attention needs to be given to the facts of a particular case and not a superficial reliance on a particular case. In this regard, ABT17 concerned a situation where a delegate had interviewed the applicant and had found his evidence was plausible and broadly consistent with country information. However, the delegate refused the application for a protection visa on more recent country information referring to the improved circumstances for people of Tamil ethnicity in Sri Lanka. Then, when the IAA conducted its review, it took a different view from the delegate after listening to an audio recording of the referred applicant's interview. The IAA found that the applicant's evidence was "generally lacking in detail" and sounded "at times vague and hesitant" (at [15]) and rejected the applicant's account of having been detained, beaten and sexually tortured by the Sri Lankan Army on suspicion of having been an LTTE supporter: at [27].
79 The plurality, Kiefel CJ, Bell, Gageler and Keane JJ, commenced their reasoning with detailed consideration of the legislative scheme, emphasising the task of the IAA as being one of a de novo consideration of the merits of the decision and needing to consider the application for a protection visa afresh and to determine for itself whether or not it was satisfied that the criteria for the grant of the visa have been met: at [5]. As part of this de novo review, the IAA has a number of ways in which it may inform itself, including considering the information contained in the review material which the Secretary provides to the IAA, and its own powers to obtain "new" information. Their Honours noted the potential for an "informational gap" arising from the fact that the IAA only had an audio recording of the applicant's interview with the delegate. Accordingly, "[m]issing from the review material will be a visual impression of how the referred applicant appeared during the interview - his or her demeanour": at [13]. Such a gap had the potential to have an impact upon the IAA's assessment of the credibility of the account given by the applicant, noting the potential importance of impressions of "demeanour": at [14].
80 Their Honours opined that the IAA had the power to bridge that gap by exercising its powers to get and consider new information, and "the question becomes as to when if at all compliance with the implied condition of reasonableness in the conduct of the review or in the consideration and exercise of those powers might compel the Authority to adopt that course" (emphasis added): at [18]. The question is not assisted by infusing notions of procedural fairness into the implied condition of reasonableness, which is expressly excluded from Part 7AA of the Act: at [18]. Rather, the answer is found by recognising that "the implied condition of reasonableness is not confined to why a statutory decision is made: it extends to how a statutory decision is made": at [19].
81 Compliance with this implied condition of reasonableness requires not only that the IAA's decision have an "intelligible justification" but that it has come to that decision "through an intelligible decision-making process": at [20]. The bounds of reasonableness may be transgressed where the IAA has treated particular information as to the reason or part of the reason for the decision without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided: at [20].
82 Importantly, their Honours noted that the mere existence of such a gap will not necessarily result in the IAA being "disadvantaged in comparison with the delegate": at [22] quoting FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 at [39]. This is so where the credibility of the referred applicant would not have a significant bearing on the IAA's determination. It would ordinarily be open for the IAA to form its own assessment of credibility, taking into account second-hand descriptions or impressions which form part of the review material: at [23]. Accordingly, the IAA is not required to interview a referred applicant merely because credibility is in issue or merely because the IAA comes to a different view as to credibility than did the delegate: at [24].
83 Finally, the plurality, at [25] determined that the IAA:
… will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given.
84 The appellant in the present case, seizing upon this paragraph of their Honours' reasoning, submitted that:
… there was no good reason in this case not to invite the appellant for an interview, in circumstances where the delegate had accepted the credibility of his claim about the army and the authority had decided to reject his credibility in relation to the claim about the army. And as your Honour has identified, … through the process of looking at those sections a moment ago, the authority was required to receive and then consider the delegate's decision, but nowhere in the authority's decision does one see any reference at all to the authority acknowledging that the delegate had obviously formed a favourable impression of the appellant and the appellant's credibility, following the interview, in relation to that particular allegation.
85 The appellant submitted that where the delegate interviews an applicant and accepts one of the applicant's claims as credible, if the reviewer (in the present case the IAA) seeks to depart from that acceptance and reject that claim, there is an "informational gap". In such a situation, according to the appellant, because the IAA has not seen and heard the applicant unless there is a good reason not to, the IAA should exercise its power under s 473DC(3) to interview the applicant so as to obtain the information itself in relation to the rejected claim and assess the applicant's demeanour. I do not accept this submission as being an accurate description of what the IAA "should do". The appellant's partial deployment of the High Court's language in ABT17 at [25] omits the Court's reference to the specific circumstances of that case - the rejection of an account in an audio recorded interview which the delegate had accepted wholly or substantially on the basis of its own assessment of the manner in which that account was given.
86 There is therefore a marked factual distinction between ABT17 and the present case. The former concerned the comparative ability between the delegate and the IAA regarding demeanour-based findings. This is evident from the reasoning of Nettle J, at [66], in which his Honour described the delegate's assessment as "based to a significant extent on the delegate's perception of the appellant's demeanour during the TPV [Temporary Protection Visa] interview". Similarly, the plurality recognised the importance of the IAA's evaluation of the appellant's demeanour, at [15] and [17]. In ABT17, the IAA stated in its reasons for not accepting that the appellant was detained and sexually tortured that it was, in part, because of the manner in which the appellant had given evidence at the interview: at [43]. The reasoning in ABT17 makes clear that the unreasonableness arose not merely by the existence of an informational gap, different findings or a departure from favourable credit findings: at [23] and [25]. Instead, the issue was the lack of opportunity, on the part of the IAA, to visually observe the appellant to give his evidence, when the delegate had been able to, given the prominence of demeanour in its findings.
87 By comparison, in the present case, when one considers the delegate's reasons for her decision, and the conclusions of the IAA extracted at [74] above, there is nothing in the IAA's reasons for its decision to indicate that its finding was on the basis of a demeanour finding. Rather, in the present case, the IAA's rejection of the appellant's account regarding him being of adverse interest was multifactorial and was based on: (a) the age of the appellant at the time of the end of the civil war; (b) the effluxion of time since the end of the civil war; (c) the fact that the appellant was not in any substantive way involved in the LTTE; and (d) the fact that after the appellant was interrogated and physically mistreated, he was not detained or charged and he was released from a camp in 2010. There is nothing in paragraph [14] of the IAA's reasons which concerned the manner in which the appellant gave his account, which would therefore enable him to rely on ABT17.
88 Furthermore, it was open for the IAA to take into account other information in forming its view, as was specifically contemplated in ABT17 by the plurality at [22]:
The mere existence of an informational gap will not necessarily result in the Authority being "disadvantaged in comparison with the delegate". That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
(Footnotes omitted).
89 In the present case, the IAA was able, within the context of Part 7AA, to come to a different conclusion to that of the delegate, without creating an obligation to seek further information from the appellant: FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 at [60]; DGZ16 at [72].
90 Accordingly, I do not accept that in the present case the IAA transgressed into the bounds of unreasonableness by not obtaining new information within its powers under s 473DC, in the form of an interview with the appellant in relation to his claim that the Sri Lankan army have visited his family's home in Vanni on four occasions between 2012 and 2018. Leave to pursue the new ground 2 is refused.