BIR19 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The appeal be dismissed with costs.
2. The name of the First Respondent be changed to 'Minister for Immigration, Citizenship and Multicultural Affairs'. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The Appellant is a Tamil Sri Lankan who arrived at Christmas Island from Sri Lanka on a boat without a visa. Subsequently, he applied for a Safe Haven Enterprise Visa ('SHEV') on 16 December 2016 which is a species of protection visa granted to a person who the Minister, or as here a delegate of the Minister, is satisfied is a refugee within the meaning of s 5H of the Migration Act 1958 (Cth) ('the Act'). The Appellant claimed to be a refugee from Sri Lanka because he had a well-founded fear of persecution if returned to Sri Lanka on three bases, only one of which remains relevant to this appeal. This was that his father had links to the Liberation Tigers of Tamil Eelam ('LTTE'), an organisation which during the civil war and afterwards had agitated for an independent Tamil state. 2 The Minister's delegate concluded that the Appellant's father had not had any high level involvement with the LTTE and that the authorities would not have any interest in the Appellant by reason of his father's role. It concluded that he was not a refugee and refused to issue the SHEV. The matter was then referred to the Immigration Assessment Authority which affirmed that conclusion. In its reasons, the Authority accepted that the Appellant's father had been a truck driver for the LTTE but concluded that he had not been in a managerial or supervisory role. As such, it did not think that the Appellant, merely by being the son of an LTTE truck driver, would attract the attention of the Sri Lankan authorities. It did not therefore accept that the Appellant had a well-founded fear of persecution on this basis. 3 The Appellant sought judicial review of the Authority's decision in the then Federal Circuit Court. Only two of the grounds pursued in that Court are relevant to this appeal. The first of these concerned the Appellant's contention that the Authority had failed to treat a submission made by him to it as 'new information' for the purposes of s 473DD of the Act. The submission was that his father had for years managed the transportation of goods and equipment for the LTTE. This submission (which explicitly concerns a managerial role for the father) should be contrasted with the Authority's finding recorded in the previous paragraph that the Appellant's father had been a truck driver not involved in managerial or supervisory roles. The significance of this is that it is clear that the Authority considered the submission that the Appellant's father had managed the transportation of goods and equipment for the LTTE and rejected it. 4 The Appellant submits that if the submission had been recognised by the Authority as 'new information' for the purposes of s 473DD then it could have exercised its power under that section to consider the information (assuming it was satisfied of the jurisdictional prerequisites set out therein). If it did so, so the argument goes, then the Authority could have exercised a second power in s 473DC(3) to invite him to comment on the information. This would have provided him with the opportunity to put further evidence before the Authority; that is to say, the Appellant submits that he should have been afforded an opportunity to comment on his own written submission. 5 The second ground was that there was a reasonable apprehension that the Authority would be biased against the Appellant. The apprehension of bias was said to arise as follows: before conducting its review of the delegate's decision, the Authority was provided by the Secretary of the Department with documents considered by the Secretary to be relevant to the Appellant's review application. These documents included an assessment report prepared by an official within the Department relating to two charges in respect of which the Appellant had been fined and disqualified from driving. The charges were 'drive under the influence' and 'fail to stop and give particulars to persons at crash scene'. 6 The relevance of these charges to the Appellant's application for the SHEV is that at the time of the events giving rise to them, the Appellant had held an interim visa pending the processing of his application for the SHEV (more precisely, a Bridging E visa). That visa was subject to a condition that he should not breach a code of behaviour which contained a stipulation that the visa holder 'must not disobey any Australian laws including Australian road laws'. The conduct that led to the imposition of the fine and the Appellant's disqualification from driving breached this condition. 7 Subsequent to those events, an assessment report was prepared by the Department to consider the significance for the Appellant of these breaches. The report assessed the level of seriousness of the offences as low and recommended that the Appellant be referred for a discussion with his Status Resolution Support Services provider. The Appellant was not informed of the existence of this report and the Authority did not refer to it in its decision. Because of these matters, the Appellant submitted that a reasonable apprehension arose that the Authority would not bring an impartial mind to bear on the resolution of its review of his matter. 8 The learned trial judge rejected both of these contentions. By his appeal from the trial judge's orders dismissing the Appellant's judicial review application, the Appellant now contends in this Court that his Honour erred in relation to both conclusions. It is convenient to refer to the first contention as the new information ground and the second contention as the apprehended bias ground and to deal with the two grounds in that order.