BLS17 v Minister for Immigration and Border Protection

Background 7 The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. In 2012, he left Sri Lanka and arrived in Australia by boat. He was interviewed shortly after arrival (the arrival interview) and again in February 2013 (the entry interview). In his entry interview, the appellant claimed that he feared being killed by the Sri Lankan Eelam People's Democratic Party (EPDP) and the Criminal Investigation Department (CID) because they suspected him of being connected to the Liberation Tigers of Tamil Eelam (LTTE). 8 In October 2013, the Appellant applied to the Minister for a permanent protection visa (Class XA) on the basis that he was a person in respect of whom Australia owed protection obligations, either as a refugee under the Refugees Convention, or as complementary protection, under the Act. The application was accompanied by a statutory declaration. In the statutory declaration, the applicant stated that he feared that if he returned to Sri Lanka, he would be harmed or killed by the EPDP or the CID. The basis for the fear was that the EPDP believed that the appellant was from an LTTE family and the CID had targeted and harassed the appellant because he was Tamil. 9 In 2015, the Act was amended such that the appellant could no longer apply for a permanent protection visa, but only for a temporary visa. In January 2016, the appellant applied for a temporary Safe Haven Enterprise Visa (SHEV). In the application, the appellant claimed that he left Sri Lanka because the Sri Lankan Army (SLA) had tried to kill him because he was a Tamil and that "many times government people tried to kill me because I'm from LTTE support family". The appellant was interviewed by a delegate of the Minister (the SHEV interview). The delegate refused the application for a SHEV. 10 The application was then referred under Part 7AA of the Act to the Authority for review of the delegate's decision. On 9 March 2017, the Authority decided to affirm the delegate's decision. It is this decision by the Authority which is the essential subject of the present appeal. 11 The Appellant applied to the Federal Circuit Court for judicial review of the Authority's decision. On 30 October 2018, the Federal Circuit Court dismissed that application.

Authority's decision 12 The Authority summarised the appellant's claims to satisfy the criteria for a SHEV as follows (Authority reasons at [3]): (a) the appellant fears harm from the EDPP because he is from a LTTE family; (b) the appellant fears harm from the CID who have previously tried to extort money from him and his cousin because they thought he and his cousin were earning a lot of money and because they are Tamil; (c) the appellant fears that the Sri Lankan authorities, including the CID, do not want to see Tamil people prosper and make good livelihoods; (d) the SLA tried to kill him because his was Tamil; and (e) the appellant fears harm because he left Sri Lanka illegally. 13 The Authority accepted some, but not all, of the appellant's claims as to what had occurred to him and members of his family in Sri Lanka. Specifically, the Authority accepted the following claims (Authority reasons at [18], see also [39]): I accept that the applicant and his family lived in Jaffna, subject to displacements between 1995 to 1999, until they moved in 2006 to LTTE controlled Kilinochchi; after the SLA took over control of Kilinochchi towards the end of the war, the applicant and his family were placed in Manik Farm IDP [Internally Displaced People] camp from February 2009 to September 2009; on release from the camp his family moved back to Jaffna; and in around April 2010 the applicant moved to Kilinochchi and started a lorry driving business. I accept that the applicant's family moved to Kilinochchi in 2006 after a paramilitary group took his family's NICs [National Identity Cards]; that just after they left their house was burnt down by the SLA/paramilitary group; that the applicant was questioned twice by the CID at Manik Farm; that the applicant was threatened by the CID on his release from Manik Farm; that after his release from Manik Farm the EPDP/CID questioned the applicant a number of times while he was in Jaffna; that the EPDP/CID also questioned his family once and his older brother a number of times, but not to the same extent as the applicant; and that after he moved there in April 2010 the applicant was questioned by the CID and police on occasion in Kilinochchi. The applicant has consistently maintained from his first interview with the Department that his sister was in the LTTE. Although I have some reservations about the applicant's claim that his sister's forced recruitment by the LTTE occurred when she was at school as the LTTE lost control of Jaffna where the family was living at the time in December 1995, I am prepared to accept his general claim that his sister was forcibly recruited into the LTTE in around 2004. I also accept that his sister worked in the medical and food sections of the LTTE; that she received military training from the LTTE; that she left the LTTE around the time the family was sent to Manik Farm and she joined them there; that the family revealed to the SLA that his sister was in the LTTE; that she was not sent for rehabilitation but was released from Manik Farm in September 2009 with the rest of the family; that she and the rest of his family continue to reside in Sri Lanka and they are okay; and that the applicant was not a member of the LTTE. 14 The Authority also accepted that the EPDP/CID visited the appellant's house four or so times in 2010 and 2011 while the appellant was in Kilinochchi to ask after his whereabouts (Authority reasons at [23]). 15 However, the Authority had concerns about other aspects of the truthfulness of the appellant's claims (Authority reasons at [19]). In particular: (a) The Authority was concerned about an inconsistency in the appellant's evidence as to whether the SLA had tried to kill him. The appellant claimed in his SHEV application that "many times" "government people" had tried to kill him. However, subsequently, in his SHEV interview with the delegate, he said that the CID had threatened him but had not attempted to kill or hurt him (Authority reasons at [20]). (a) The Authority accepted that one of the appellant's sisters had been recruited into the LTTE. However, the appellant claimed for the first time at his SHEV interview that another sister of his had been arrested by the SLA in 1990 and imprisoned on suspicion of LTTE involvement until 2000. In 1990, the appellant's sisters were 10, 11 and 13 years old. The Authority found that this claim was a fabrication because of the belated mention of the incident by the appellant and the implausibility of the Sri Lankan authorities detaining a girl aged 13 years or younger for ten years (Authority reasons at [21]). (b) In his 2013 statutory declaration, the appellant claimed that the CID had tried to extort money from the appellant and his cousin in Kilinochchi. When asked at the SHEV interview whether there was anything in particular that made the appellant leave Sri Lanka, he did not mention the extortion attempt but claimed that the CID had abducted his cousin. The appellant claimed that the cousin had been held for two days but had subsequently left Sri Lanka. The appellant could not remember the cousin's name. The Authority did not accept this aspect of the appellant's claim because of the belated mention of it, his inability to remember his cousin's name, his inconsistent statements about where his cousin was now living and the unlikelihood that the appellant would turn to the CID to find his cousin if the CID had previously harassed the appellant (Authority reasons at [22]). 16 Having regard to country information (including the UNHCR's current Eligibility Guidelines for Sri Lanka and the risk factors identified therein), the Authority was not satisfied that the appellant would be at risk of serious harm by reason of any real or imputed LTTE links or political opinion. It explained (Authority reasons at [40]): First, residing in a LTTE controlled area does not on the evidence indicate a need for protection. Secondly, the Sri Lankan authorities were aware that his sister was a member of the LTTE when the family was held at Manik Farm and didn't send his sister to rehabilitation like many other LTTE members or suspected members, but released her and her family, including the applicant, without any further restrictions. Thirdly although he was questioned and threatened by the EPDP and CID in Jaffna and by the CID and police in Kilinochchi, he was never physically harmed and does not claim to have been arrested or detained by the authorities. Fourthly, the questioning and harassment of Tamils in the north and the east, particularly the questioning of returnees from IDP camps, was common or routine under the former Rajapaksa government. Fifthly, on my findings, none of the applicant's family, including his LTTE sister, have been arrested or detained by the authorities. Sixthly, the destruction of his family's home occurred during the war and there is no suggestion in the evidence that the authorities have seized or damaged any of the family's property since the end of the war. Seventhly, on my findings, the Sri Lankan authorities have shown no interest in the applicant or his family since he left Sri Lanka for Australia in August 2012. I am not satisfied that the authorities would have had any adverse interest in the applicant if he had remained in Sri Lanka or that he would be of any adverse interest to the current Sri Lankan authorities on return. Given the above factors, and the country information, I consider that any risk of harm to the applicant from the authorities based on his profile is remote. 17 The Authority also specifically considered the risk to the appellant arising from the facts that he had been questioned by the EPDP on a number of occasions in 2009 and 2010, and that the EPDP and CID had questioned his parents about his whereabouts on four or so occasions in 2010 and 2011 (Authority reasons at [42]). However, the Authority considered that the authorities "had only a routine interest" in the appellant (Authority reasons at [43]): Based on country information discussed above that suggests the questioning and harassment of Tamils in the north, including returnees from IDP camps, was common, the nature of his questioning by the EPDP and that he was not arrested, detained or physically harmed by them, I am satisfied that the EPDP, like the CID, had only a routine interest in the applicant. On my findings, the EPDP last enquired about the applicant in 2011. The EPDP showed only a limited interest in the applicant's family, including his older brother, together with questioning his LTTE sister only once. Given their interest in the applicant, and his family, was routine and that five or six years have passed since they last showed any interest in the applicant in 2011, I am not satisfied that the applicant faces a real chance of harm from the EPDP, if returned to Sri Lanka, now or in the reasonably foreseeable future. 18 The Authority then specifically considered the risk to the appellant arising from the fact that the appellant would be considered by the authorities to be a failed asylum seeker who departed Sri Lanka illegally (Authority reasons at [44], see also [51]). The Authority noted that there are a small number of reports of mistreatment of failed asylum seekers on return and accepted that a returning asylum seeker with actual or perceived links to the LTTE would be at risk of harm. However, the Authority found that that would not be the case for the appellant, concluding (Authority reasons at [51]): …based on my findings, notwithstanding his sister being a known member of the LTTE, his family's residence in the LTTE controlled areas during the war and his routine questioning by the CID, EPDP and police, the applicant was not of any interest to the former Sri Lankan authorities at the time he left Sri Lanka and the authorities have shown no interest in him since he departed Sri Lanka". 19 Taking these matters into account, the Authority was not satisfied the appellant faced a risk of adverse attention from Sri Lankan authorities on his return (Authority reasons at [52]).

The Federal Circuit Court's decision 20 The appellant sought judicial review of the Authority's decision in the Federal Circuit Court pursuant to s 476 of the Act. The jurisdiction conferred on the Federal Circuit Court by that section is the same as the High Court has under s 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. 21 The Federal Circuit Court was not persuaded that the Authority had fallen into jurisdictional error. In so far as the reasons of the primary judge are relevant to the appeal, they are considered below in relation to the grounds of appeal.

Ground 1 of the appeal - unreasonableness 22 By ground 1 of the appeal, the appellant contends that the Federal Circuit Court erred in not finding that the Authority acted irrationally, illogically or unreasonably and fell into jurisdictional error. The specific complaint is that the Authority rejected some of the appellant's claims as a fabrication but did not invite the appellant to attend an interview to put those matters to the appellant. The appellant contends that that failure was, of itself, legally unreasonable. The appellant also contends that the failure was legally unreasonable when the decision of the delegate was not based on an adverse credibility finding. 23 As noted above, the Authority accepted most of the claims made by the appellant but rejected three specific claims. The first, that "government people" had tried to kill him, was rejected by the Authority because that claim was modified by the appellant in his SHEV interview. That finding appears to be consistent with the delegate's finding that the appellant's claim of threats of harm were generalised and non-specific and that the appellant did not have a profile of significant adverse interest to the EPDP or the CID. The second and third claims rejected by the Authority were rejected as fabrications: that one of his sisters had been imprisoned for 10 years between 1990 and 2000 on suspicion of LTTE involvement and that his cousin had been abducted by the CID for 2 days. The delegate did not refer to the claim concerning the imprisonment of the appellant's sister, giving rise to an inference that the delegate did not accept that claim (it was raised for the first time in the SHEV interview). However, the delegate had accepted the claim concerning the appellant's cousin. Thus, the Authority's findings of fact differed from the delegate in only one respect. 24 The appellant contends that the Authority acted unreasonably in failing to invite the appellant to attend an interview in order to put the adverse findings to the appellant and seek the appellant's response and thereby fell into jurisdictional error. Counsel for the Minister accepted that, if new information from the appellant had led to those adverse findings being reversed, that could have resulted in a different decision. Accordingly, if the Court found that the Authority acted unreasonably in failing to exercise its discretion to seek further information from the appellant, that error would have constituted jurisdictional error: see Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [30]. 25 The Federal Circuit Court found that the Authority's decision was not unreasonable. For the following reasons, there is no error in that conclusion. 26 Part 7AA establishes a limited form of review for certain types of migration decisions described as "fast track reviewable decisions". Section 473CA stipulates that the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made. Section 473CB stipulates the information that must be given to the Authority in respect of each fast track reviewable decision that is referred to it. Section 473CC provides that the Authority is required to review the Minister's decision and either affirm or remit the decision for reconsideration. It is implicit in the concept of a review that the Authority may reach different findings of fact to the Minister. 27 The conduct of a review under Part 7AA is subject to the provisions of Division 3. Those provisions govern matters such as the applicable scope of the natural justice hearing rule and the manner in which the Authority may inform itself in conducting the review. 28 Subsection 473DA(1) stipulates that Division 3 of Part 7AA, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. 29 Section 473DB stipulates that, subject to Part 7AA, the Authority must review a fast track reviewable decision referred to it by considering the review material provided under s 473CB without accepting or requesting new information and without interviewing the referred applicant. In other words, the review is to be conducted "on the papers". However, s 473DC empowers the Authority to seek documents or information that were not before the Minister when the Minister made the decision under s 65 and that the Authority considers may be relevant. The discretion conferred on the Authority by that section is subject to the implied condition that it be exercised within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [21] per Gageler, Keane, and Nettle JJ and [86] per Gordon J. The content of the constraint of reasonableness in this legislative context is informed by the legislative features of the scheme of review set out in Part 7AA: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11]; Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 at [59] per Gageler J. 30 Section 473DD contains further restrictions on the power of the Authority to consider new information when conducting the review. It stipulates that the Authority must not consider new information unless it is satisfied that there are "exceptional circumstances" and, in relation to new information given or proposed to be given by the referred applicant to the Authority, the referred applicant has satisfied the Authority that the information was not and could not have been provided to the Minister before the Minister made the primary decision and the information is credible personal information which was not previously known and, had it been known, it may have affected the consideration of the referred applicant's claims. 31 On a number of occasions, the Court has considered whether a failure by the Authority to seek additional information from a visa applicant 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 Part 7AA (review by the Authority) differs from the legislative scheme of review established by Part 7 (review by the Administrative Appeals Tribunal). In particular, under Part 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 and Multicultural and Indigenous Affairs (2006) 228 CLR 152. However, those principles are not directly applicable to a review under Part 7AA given the different statutory requirements for the review. Part 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 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [69] (DGZ16). (b) As a general proposition, Part 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 and Border Protection [2018] FCAFC 222 at [74]. (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. An example is afforded by Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16). In that case, 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 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]). 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) Another example is afforded by DPI17 v Minister for Home Affairs [2019] FCAFC 43 (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). 32 In the present case, the Authority reached the same ultimate conclusion as the delegate but differed from the delegate on one finding of fact: the Authority disbelieved the appellant's claim that his cousin had been abducted by the CID for two days. There was a reasonable basis for the Authority to make that finding. First, the appellant had failed to mention the abduction in his 2013 statutory declaration; in that declaration, the appellant had claimed that the CID had tried to extort money from the appellant and his cousin. Second, the Authority did not find it credible that the appellant could not recall the cousin's surname. Third, the Authority did not consider it plausible that, despite being harassed by the police and CID in Kilinochchi that the appellant would approach the police in Kilinochchi about the CID abducting his cousin. While the delegate had accepted this aspect of the appellant's claim, the Authority was empowered by Part 7AA to review the claim and come to a different conclusion without putting the adverse finding to the appellant or seeking further information from the appellant. 33 As to the other two claims referred to by the appellant, the Authority's findings did not overtly differ from those of the delegate. The delegate had not made any finding that the appellant had been subject to threats to his life (presumably because the appellant had qualified that claim in his SHEV interview) and the delegate had not made any finding on the claimed imprisonment of the appellant's sister. There was a reasonable basis for the Authority's findings on those two claims and the Authority was empowered to make those findings without seeking further information from the appellant. 34 The appellant submits that this case is comparable to CRY16. In my view, the circumstances are distinguishable. In this case, unlike CRY16, the appellant had and exercised the opportunity to give the Department of Immigration and Border Protection whatever evidence he wished to give in relation to his fear of harm in his home area in Sri Lanka. The Authority was empowered to review the appellant's claims, which included an assessment of the credibility of the claims. The Authority formed a different view of the credibility of the appellant's claims from that made by the delegate in a limited respect. It was entitled to do so, without inviting the appellant to give new information. 35 This case does not share any of the features of DPI17. There is no evidence to suggest that any aspect of the delegate's decision was influenced by favourable impressions formed as to the appellant's demeanour during an interview. Nor is there any evidence that the delegate made any representations to the appellant that dissuaded the appellant from giving further information to the delegate which might have been material to concerns subsequently identified by the Authority.

Ground 2 of the appeal - procedural fairness 36 By ground 2 of the appeal, the appellant contends that the Federal Circuit Court erred in not finding that the Authority denied the appellant procedural fairness or natural justice as required by law and thereby fell into jurisdictional error. The factual basis of this complaint is the same as for ground 1 of the appeal: the failure of the Authority to put adverse findings to the appellant and seek a response. 37 The Federal Circuit Court found that there was no breach of any requirement of procedural fairness or natural justice. For the following reasons, that conclusion of the Federal Circuit Court is correct. 38 In the circumstances of this case, and having regard to the legislative framework, an appeal to the requirements of procedural fairness cannot assist the appellant. Whether and in what manner the exercise of a statutory power is conditioned by requirements of procedural fairness is a question of statutory construction: Kioa v West (1985) 159 CLR 550 at 611-612 per Brennan J. In respect of reviews conducted by the Authority under Part 7AA, subs 473DA(1) stipulates that Division 3 of Part 7AA, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. As discussed above, the statutory regime in Division 3 of Part 7AA contemplates that a review by the Authority will be conducted "on the papers", subject to the limited circumstances in which the Authority may seek and consider new information. The provisions of Division 3 deny the imposition of an overriding obligation of procedural fairness that would require the Authority, in every review, to put adverse findings to the applicant and seek a response from the applicant: cf BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71]. Any obligation of procedural fairness that arises under Division 3 cannot rise higher than an obligation to exercise the statutory discretion, which allows the Authority to seek further information from the applicant and elsewhere, reasonably and in accordance with law. 39 Given the finding in respect of ground 1 of the appeal that the Authority had exercised its statutory discretion reasonably and in accordance with law, no different finding can or should be made in respect of ground 2 of the appeal. The Authority did not breach any obligation of procedural fairness in conducting its review.

Conclusion 40 In conclusion, the Federal Circuit Court was correct to dismiss each of grounds 1 and 2 of the present appeal. I will dismiss the appeal and order costs in favour of the Minister. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan.